Andrew Jergens Co. of California

National Labor Relations Board - Board Decisions

Sep 27, 1940

27 N.L.R.B. 521 (N.L.R.B. 1940)

In the Matter of ANDREW JERGENS CO. OF CALIFORNIA and SOAP .
COS3IETIC WORKERS UNION, No. 21361 ,
Cases Nos. R-762 and C-793-Decided September 27, 1940
Jurisdiction : toilet preparations manufacturing industry.
Unfair Labor Practices
Company-Dominated Unions: formation of first, to forestall outside organization ;
participation in formation of : suggesting organization ; calling and attend-
ing meetings ; participation in administration ; serving as officers ; attending
and soliciting employees to attend meetings-successor organization formed
after dissolution of predecessor ; similarity in structure and identity of
officers ; solicitation, surveillance, threats and anti-union statements by
supervisory employees. '
Discrimination: discharges for union membership and activities; lay-offs be-
cause of union membership and failure to affiliate with company-dominated
union ; delayed reinstatements because of union membership and refusal to
join company-dominated union ; charges of discrimination dismissed as to
several employees.
Collective Bargaining: charges of , dismissed.
Remedial Orders : successor dominated labor organization disestablished; em-
ployees who have not been reinstated ordered reinstated; pack pay awarded
those employees who have been reinstated as well as those ordered rein-
stated ; employees laid-off in a non-discriminatory manner placed upon a
preferential list.
In order to bar a resumption or repetition of employer domination to a
labor organization which has been replaced by another organization, em-
ployer ordered to cease and desist from dominating, interfering with, or
contributing support to it.
Employee convicted of loitering ordered reinstated where there is no
showing that his past record in any way affected his efficiency or
trustworthiness as an employee.
Evidence -
Illegally obtained evidence admissible where it does not appear that any
government agent-acted in collusion with culpable person in securing the
evidence, thereby violating some provision of the U. S Constitution, and
where it does not appear that obtaining the document or revealing its
contents violated any Federal Statute.
Practice and Procedure : petition dismissed in view of lapse of time since filing.
Mr. Frank A. Mouritsen, for the Board.
Mr. Ralph E. Palmer, of Glendale, Calif., and Mr. - E. F. Prior,
of Wilmington, Calif., for the Union.
Mr. Frank Mergenthaler, of Los Angeles, Calif., for the
respondent.
Mr. Harry Cooper, of counsel to the Board.
27 N. L. R. B., No. 107
521
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF. THE CASE
On November 8, 1937, Soap & Cosmetic Workers Union; No.
21361,1 herein called the Union, filed with the Regional Director for
the Twenty-first Region (Los Angeles, California) a petition alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of Andrew Jergens Co. of California,
Burbank, California, herein called the respondent, and requesting
an investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act.
On December 3, 1937, the Union filed with the Regional Director a
charge alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning' of
the Act.
On December 21, 1937, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act, and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, ordered an investigation in Case
No. R-762, authorized the Regional Director to conduct it and to
provide for an appropriate hearing upon due notice, and, acting pur-
suant to Article III, Section 10 (c) (2) and Article II, Section 37
(b) of said Rules and Regulations, further ordered that Case No.
R-762 and Case No. C-793 be consolidated for purposes of hearing.
Upon the aforesaid charge and upon amended charges duly filed
by the Union, the Board, by the Regional Director, issued its com-
plaint dated January 4, 1938, against the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
(2), (3), and (5) and Section 2 (6) and (7) of the Act. Apart from
the jurisdictional allegations, the complaint, as amended prior to and
at the hearing, alleged in substance (1) that the production em-
ployees of the respondent, excluding office employees, maintenance
employees, foremen, forewomen, and supervisors, constitute a unit
appropriate for the purposes of collective bargaining; (2) that al-
though a majority of the employees in said unit have, designated
the Union as their exclusive bargaining representative, the respondent
3 This labor organization was designated as Soap & Cosmetic Workers A. F. of L. on the
petition , charge, complaint , and other formal papers . At the hearing the pleadings were
amended to state the name . of the organization as set forth above.
ANDREW' J'E'RGUNSI CO. OF CALIFORNIA 523
has refused and continues to refuse to bargain collectively with
the Union; (3), that the respondent has dominated, supported, and
interfered with the formation and administration of two labor or-
ganizations, respectively known as Andrew Jergens Employees' As-
sociation, herein called the Association, and Independent Soap &
Cosmetic Workers Union, Inc., herein called the Independent; (4)
that the respondent laid off, refused and continues to refuse -to re-
instate Ed Young because of his union activity and because he
engaged in concerted activities with other employees for their mutual
aid and protection; (5) that the respondent discharged, refused, and
continues to refused to reinstate 42 other named employees 2 for the
reason that they joined and assisted the Union and engaged in con-
certed activities, with other employees for their mutual aid and
protection; and (6) that by the foregoing and other acts, the re-
spondent has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act.
Copies of the complaint, accompanying notice of hearing, amend-
ments to the complaint, the petition, and a separate notice of hear-
ing on the petition, were duly served upon the respondent and the
Union. The Independent was served with copies of the complaint,
accompanying notice of hearing and amendments to the complaint.3
The respondent filed an answer to the complaint, contesting the
Board's jurisdiction of the subject matter, denying that it had en-
gaged in the unfair labor practices alleged in the complaint, and
making certain averments hereinafter referred to. The answer was
amended at the hearing.
Pursuant to notice, a hearing in the consolidated cases was held at
Los Angeles, California, from January 11 to March 11, 1938, in-
clusive; before Dwight W. Stephenson, the Trial Examiner duly
designated by the Board. Upon motion filed by the respondent with
the Regional Director on March 19, 1938, the record was reopened
and further hearing held on April 8, 1938, for the purpose of adduc-
ing after-discovered evidence relating to the case of William G.
Blackmon, one of the respondent's employees.
2 The names of these employees follow : Suzanne Adams, Florence Arnold, Clementine,
Bayless, W. G. Blackmon, June Brown, Grace Louise Bruce, Glen Campbell, Vera Campbell,
Lesley (Leslie) Chatfield, Lola Cox, James (J R ) Craig, Helen Cox Dobbin (Dobbins),
L. H. Eddington, Sue Fields, Mary Gracey, Melba Graistrom, Harold R. Gratias, Mildred
Gribble, Kathryn (Katherine) Hayes, Norman Heywood, Dorothy Holmes, Lena Holmes,
Lula Johnson, Jane Lansing, Jean Mills, Joseph Mulleda, Chester (C. F.) Murphy, Ruth
Newman, Ralph Palmer, Shea Paysinger (Peysinger), Ilene Pillow, Velma Rainwater,
Virginia Reid, Ruth Rhoads, Helen Rogers, Betty Rowe, Ralph Smith, Arlene Stewart,
Dolores Van Holm, Eudalia Watkinson, Nancy Williams, and Marie Worcester.
3 Service on the Independent was made on January 20, 1938, during a recess of the
hearing, when the Second Amendment to the Complaint, alleging that the respondent
dominated, supported and interfered with the formation and administration of the
Independent, was issued and served upon the parties.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board and the respondent were represented by counsel, the
Union by its president and business representative, and all partici-
pated in the hearing. Although the Independent was served with
a copy of the complaint and amendments thereto and was advised of
its right to intervene in the proceeding, it did not appear. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues was afforded all
parties.
During the course of the hearing the respondent made motions to
dismiss the petition on jurisdictional grounds and the complaint on
the ground that the evidence did not support its allegations. The
Trial Examiner denied these motions and his rulings are hereby
affirmed.
Toward the close of the hearing, and during cross-examination of
a witness for the respondent, the Board's attorney offered in evidence
a document, herein referred to as the Rothenberg memorandum.
The respondent objected to its receipt in evidence on the general
ground that it was incompetent, irrelevant, •immaterial, and not pro-
bative of any issue in the case, and on the special ground that the
contents of the memorandum had not been shown to have been com-
municated to anybody. The Trial Examiner overruled these objec-
tions and admitted the Rothenberg memorandum. Thereafter the
respondent moved to strike the document from the- record on the
ground that it had been obtained unlawfully by some person from
a plant waste receptacle and that Board counsel had knowledge of
such unlawful act when he offered the document in evidence.4 The
respondent did not contend that any government agent acted in col-
lusion with such person in securing the document. - The Trial Exam-
iner denied the respondent's motion to strike. We agree with the Trial
Examiner's ruling. Illegally obtained evidence is admissible in
State and Federal courts.5 The modification of this rule by the
Federal courts does not support the respondent's position. It does
not appear that any government agent acted in collusion with the
culpable person, thereby infringing some provision of the United
States Constitution,° or that obtaining the document or revealing its
4 We assume, without deciding, that the document was unlawfully obtained
5 Olmstead v. United States, 277 U S. 43S , 1171gmore on Evidence, sections 2183 and
2184 ; 1934 supplement, pp 940-950. Cf Code of Evidence, Tentative Draft No. 1, Anaei-
can Law Institute, Rule 4 -
6Burdeaie v McDowell, 256 U S 465 The respondent contends that, because counsel
for the Board introduced in evidence the Rothenberg memorandum toward the close of the
hearing, it was deprived of an opportunity to investigate the removal of the document from
the plant and the connection of agents of the Board with such removal However, the
memorandum was introduced on March 1, 1938, and the hearing did not close until March
11, 1938. Moreover, counsel for the respondent did not claim that he had insufficient time
to make the desired investigation and made no request for a continuance of the hearing for
such purpose . We find that the respondent was afforded ample opportunity to prove any
connection between agents of the Board and the removal of the document from the plant.
a
ANDRE'W JERGENS CO. OF CALIFORNIA 525
contents violated any Federal statute.' The Board is "charged in
the public interest with the duty of preventing unfair labor prac-
tices " defined in the Act, and Board proceedings thereunder are
"narrowly restricted to the protection and enforcement of public
rights," as set forth therein.8 Here, the respondent in effect demands
that we subordinate the policy of the United States declared in the
Act to the State criminal law or to the respondent's private rights.
These interests of the State and the respondent may be vindicated
before an appropriate tribunal in an appropriate proceeding. Con-
gress created the Board to protect the public interest in self-organi-
zation and collective bargaining. In Board proceedings this public
interest must prevail as against the interests contended for by the
respondent.° The Trial Examiner's denial of the motion to strike
is hereby affirmed.
Other motions and objections to the admission of evidence were
made and ruled upon at the hearing. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On or about July 27, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties. There-
after the respondent and the Union filed their respective exceptions to
the Intermediate Report. - On December 6, 1938, the respondent filed
with the Board and served upon the parties an Affidavit of Prejudice,
praying 'that the Intermediate Report of the Trial Examiner be not
approved. On December 8, 1938, the respondent filed a brief with the
Board. On December 10, 1938, the Trial Examiner filed with the
Board and served upon the parties an affidavit in answer to said
Affidavit of Prejudice.10 On December 13, 1938, the Board issued an
order (1) granting the respondent's prayer and not approving the
Intermediate Report; (2) expunging and striking from the'record
the Intermediate Report, the exceptions thereto, and all other formal
documents with respect thereto, except the Affidavit of Prejudice and
' Cf. Nardoni v United States, 302 U S 379 ; Nardoni v United States , 60 S Ct 266
,8 National Lacoiice Company v N L R B , 60 S. Ct 569
9 Cf National Licorice Company v N L R. B., 60 S Ct. 569 (Board may effectuate
policies of Act by invalidating contract rights) ; N. L. R. B v Carlisle Lninber Co , 94 F
(2d) 138 , 99 F (2d ) 533 (C C. A 9), cert. den'd , 304 U. S 575, 306 U S . 646 (Board may
effectuate policies of Act by an order against employer , despite unlawful conduct by charg-
ing union ) ; Republic Steel Corp v N L R B, 107 F (2d) 472 (C C. A 3 ), Bert granted
on another issue, May 20, 1940 (Board may effectuate policies of Act by ordering employer
to reinstate employees , despite their violation of the criminal law of the State).
" From the affidavits filed by the respondent and the Trial Examiner it appears that
after the close of the hearing and after the submission to the Chief Trial Examiner by the
Trial Examiner of a rough draft of the Intermediate Report, which was substantially the
same as the draft finally issued and served upon the parties , but before such issuance and
service , the Trial Examiner became a candidate in a primary election ; that the election dis-
tiiet included voters ii ho were employed at the plant involved in this proceeding ; and that
the Trial Examiner claimed to be the "only . . . candidate officially indorsed by organized
labor.'
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the affidavit of the Trial Examiner in answer thereto ; ( 3) transferring
and continuing Case No. C-793 before the Board in accordance with
the Board's Rules and Regulations; (4) directing the issuance of
Proposed Findings of Fact, Proposed Conclusions of Law, and Pro-
posed Order; and (5) granting the parties the right, within 10 days
from the receipt of. said proposed findings, to file exceptions, to request
oral argument before the Board, and to 'request permission to file a
brief with the Board.
On July 18, 1940, the Board issued and duly served on the parties,
and the Independent, its Proposed Findings of Fact, Proposed Con-
clusions of Law, and Proposed Order. In its proposed findings the
Board directed that the parties herein should have the right within
20 days from the date of receipt of the proposed findings to file ex-
ceptions thereto and request permission to argue orally before the
Board, and within 30 days from the receipt of such proposed findings
to file a brief with the Board. 'Thereafter the respondent and the
Union filed exceptions to the proposed findings. The respondent and
the Union, respectively, also filed a brief and a statement, in support
of their exceptions.
The Board has considered the exceptions, brief,70a and statement.
In its brief the respondent contends that it was deprived of a fair
hearing. The Board finds this contention to be without merit.bob In so
far as'the exceptions are inconsistent with the findings of fact, con-
clusions of law, and order set forth below,'the Board finds them to be
without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a California corporation having its office and
manufacturing plant at Burbank, California. Its parent organiza-'
lion, Andrew Jergens Company, Cincinnati, Ohio, an Ohio corpora-
tion, owns a^ majority of its stock and determines its policies. The
respondent is engaged in the manufacture of toilet soaps, lotions,
creams, powder, and toilet preparations. It purchases between 35'
'°' In its brief the respondent incorporates by reference a brief filed December 8, 1938.
The Boaid has considered the brief of December 8 as part of the respondent ' s subsequent
brief
"I At the close of the Board's case counsel for the respondent applied for and was denied
a continuance . Upon the entire record we find that such denial did not deprive the respond-
ent of a fair hearing At the close of the hearing counsel for the respondent stated with
reference to the conduct of the hearing that ". . . under certain circumstances , this might
have developed into a cat and a dog fight, if it hadn ' t have been for the capable and judicial
manner in which the [Trial) Examiner has handled it, and his patience in the case . .
ANDREW JERGENS CO. OF CALIFORNIA . 527
and 50 per cent of the' raw materials used at the plant' outside the
State of California. For its fiscal year from December 1, 1936 , to
November 30, 1937, the purchase price of raw materials amounted to
$736,641.
The bulk of the respondent's manufactured products are sold to
Jergens-Woodbury Sales Corporation of California, a California
corporation whose stock is owned by the respondent, whose offices
are in the same building as those of the respondent, and whose officers
are identical with those of the respondent. The sales corporation
employs no shipping employees. The respondent's shipping em-
ployees do the shipping for the sales corporation. Between 40 and
50 per cent of the products sold by the sales corporation for the years
1936 and 1937 were shipped to points outside of California. Sales
of the respondent's products in 1937 amounted to $1,300,852.89. The.
sales corporation employs salesmen and serves the territory west of
a line drawn on'the eastern boundaries of New Mexico, Utah, and
Montana, from the Mexican border to Canada.
During November and December 1937 and January 1938 the re-
spondent employed approximately 87 production and maintenance
employees.
II. THE ORGANIZATIONS INVOLVED
Soap & Cosmetic Workers Union, No. 21361, is a labor organiza-
tion affiliated with the American Federation of Labor. It admits
to membership employees of the respondent except maintenance
employees and watchmen.
Andrew Jergens Employees' Association was an unaffiliated labor
organization admitting to membership employees of the respondent.
Independent Soap & Cosmetic Workers' Union, Inc., is a labor
organization admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Domination, support, interference, restraint, and coercion,
1. The Andrew Jergens Employees' Association
In and after April 1937 employees of the respondent engaged in
discussion concerning the formation of a labor organization. On or
about May 1 and June 10, E. F. Prior, a representative of the A. F.
of L., spoke to Ralph Palmer, a shipping-department employee, and
other employees about organizing "a union.
On or about June 15, 1937, Ed Young, an employee in the shipping
department, and R. D. Van Hove, maintenance foreman, talked in
528 DECISIONS OF NATIONAL LABOR RELATTONS BOARD
the engine room about wage rates and union organization at the re-
spondent's plant. Van Hove remarked' that organization was all
right if the employees "would stick together." At this point in
the conversation Russell, then general manager, came into the engine
room. Thereupon, according to Young, Van Hove stated "that the
union never did do a company any good; in fact, it caused a lot of
strikes and put a lot of people out of work," and Russell stated :
"That a boy, Van, give them the devil." Although Van Hove at
the hearing gave a different version of his conversation with Young
he did not deny explicitly that he made the above-quoted anti-union
statement. Van Hove denied that Russell made the above-quoted
remark attributed to the latter. Russell died before the hearing.
Upon the entire record we credit Young and find that Van Hove
and Russell made the afore-mentioned statements attributed to them.
On June 21, 1937, Van Hove called a meeting of the employees.
John Farral, soap-department foreman, and Theresa Santella, cream-
department forelady, notified employees to attend. Irene Odle,
powder-department forelady, notified at least one employee to at-
tend. The meeting was held in the plant during the noon hour.
Most of the foremen and foreladies, including Van Hove, Santella,
-Odle, Farral, Gladys Eckland, forelady in the soap department, and
Paul Atwood, then foreman in the shipping department, were
present. Van Hove presided. He informed the assembled em-
ployees that the purpose of the gathering was to form an "inside"
organization and, by this means, to prevent the formation of an
"outside" organization. Forelady Santella spoke in favor of the
proposal. Pursuant to the advice of Van Hove, Santella, and other
persons,'and over the objection of Palmer and William Blackmon,
a soap-department. employee, the assembled employees agreed to meet
again that evening.
The meeting, in the evening of June 21, 1937, took place in the
D. A. R. hall in Burbank. Foreman Van Hove presided during
the fiist part of the meeting. Other supervisory employees at-
tended and participated therein. Forelady Santella asked June
Brown, an employee under her supervision in the cream department,
to take the minutes of the meeting. Atwood sat at a table in the
front of the room and assisted June Brown. Following some dis-
cussion, it was decided to organize a new "company union." The
organization thus formed became known as the Andrew Jergens
Employees' Association.
Temporary officers were elected. Foreman Van Hove and Fore-
lady Odle were nominated for office but declined after strenuous
objection by Blackmon on the ground that they were supervisory
employees. After declining her nomination, Odle turned to Black-
ANDREW JERGEN-SS CO. OF CALIF'ORNLk 529
mon and said, "I will get even with you for this."', Palmer was
elected president, Louis Cordery, an assembler in the shipping de-
partment, vice president, and June Brown, secretary. Among sev-
eral departmental representatives elected was Charles Bryan, another
employee in the shipping department.
Several days after June 21 Foreman Van Hove stated to Samuel
Geneau, plant superintendent, that he had called the first meeting
of that day because he "thought it was best for the employees to
have their own association to represent them rather than a union
organization." Geneau, according to Van Hove, "seemed to think
that it was all right."
On or about June 28, pursuant to Palmer's suggestion, a meeting
of the temporary officers of the Association was held at the home of
Ruby Hiberger, an employee, for the purpose of drafting a consti-
tution and bylaws. Palmer presented a proposed constitution and
bylaws; and attempted without success, to persuade those in at-
tendance that heads of departments should not be eligible to member-
ship.
On July 12 the Association, at a membership meeting, adopted
its constitution and bylaws and elected permanent officers and de-
partmental representatives. They included Palmer, president, Cor-
dery, vice president, Jean Mills, employee in the soap department,
secretary, and Ed Yingling, employee in the shipping department,
treasurer. The first Monday in the month was established as a
regular meeting night.
Foreladies Eckland, Odle, and Santella, and Foremen Farral and
Van Hove, Fred Joyner, foreman in the shipping department 12 and
Vincent Stephino, foreman in the cream department, became mem-
bers of the Association some time between June 21 and October 4,
and attended one or more meetings thereof.
After its formation Forelady Eckland requested employees in
her department to attend meetings of the Association. Odle re-
quested at least one employee to attend a meeting of the Association,
and stated, that it was important for employees to attend.
On August 15 the Association requested the respondent to recog-
nize it, as collective bargaining representative of its members, and
thereafter the respondent agreed to such recognition of the Asso-
ciation. The respondent requested the Association, at the same
time, to submit a proposed agreement.
1 Odle denied having made this statement, but since both Palmer and Blackmon testified
conceinmg the remark , and since it is consistent with Odle's and the respondent 's anti-union
conduct set forth below, we do not credit her denial
"Joyner became foreman of the shipping department on October 11, 1937, and retained
his membership in the Association thereafter.
323428-42-vol 27-35
530 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
On October 4 the Association held a general,membershlp meeting.
At this meeting the executive committee sponsored a resolution re-
questing the respondent to put into effect specified increased min-
imum rates of pay. Foreman Vail Hove and Foreladies Odle and
Santella spoke in opposition to the resolution on the asserted ground,_
among others, that the employees were satisfied with their present
wages. The 'resolution was passed.
Following the meeting of October 4,' six supervisory employees,
including Van Hove, Eckland, Farral, Odle, and Santella resigned
from the Association and several supervisory employees made state-
ments hostile to the Association's demand for a wage increase. Ruth
Nichols, assistant forelady in the soap department, informed em-
ployees in the department that the forelady, Gladys Eckland, "was
quite hurt . . . thought we were going against her wishes when
,Ve• wanted to ask for an increase in pay . . ." Eckland stated to
employees- in the department that "they asked for it and- they were
going to get it." Foreman Farral stated to Blackmon : "We will
have to get busy and- get more soap out; have to build our stock
up ..: You fellows, you are agitating around here .' . ." Fore-
lady Odle informed employees in her department that they were
"going to work from now on," and that she had "quit wasting [her]
smiles" on the employees 13
On or about October 9 Palmer transmitted to the respondent on
behalf of the Association the demand for increased minimum rates
of pay and a proposed agreement providing for recognition-by the
respondent of the Association as representative of its members. On
October 15 the respondent placed in effect certain minimum rates
of pay, which apparently constituted an increase for certain cate-
gories of employees. It is not clear from the record whether or
not the rates placed in effect. were equivalent to those requested by
the Association 14 On October 25 the respondent submitted to the
Association a proposed agreement which, among other things, em-
bodied the October 15' minimum rate schedule, contained a clause
regulating `hours of work, recognized the Association for its mem-
bers, stated that the Association was opposed to strikes, and included
other provisions limiting exercise of the right to strike.
Palmer had concluded that the Association could not operate
effectively as a labor organization because of "too much opposition
within the Company union" and lack of outside affiliation. Accord-
11 Eckland, Odle , and Farral denied the above statements attributed to them , but upon
the entire record we do not cm edit these denials -
14 The rate schedules are dated August 13. General Manager Rothenberg testified at the
hearing that the respondent had decided, appaiently prior to August 13. to place the mini-
mum rates in effect but delayed such action until October, 15, in'order to permit the
respondent to make ad iustments in its sales prices
ANDREW JEiRGENS CO. OF CALIFORNIA 531
ingly, he decided to call a special meeting of 'the Association to
consider the question of 'dissolution.
On October 25 the Association held a special meeting for the
purpose of considering the wage question and Palmer's proposal to
dissolve the organization. Palmer presided. Foremen Stephano and
Joyner were present. Prior, A. F. of L. organizer, attended also, at
the invitation of Palmer. Palmer spoke in opposition to the pro-
posed agreement submitted by the respondent and in opposition to
continuance of the Association. Prior described the advantages of
membership in the A. F. of L. Palmer introduced and the member-
ship adopted a resolution dissolving the Association.
2: Independent Soap and Cosmetic Workers' Union, Inc.
At the conclusion of the meeting on October 25 , 15 former members
of the Association , including Palmer, applied for membership in
the, A . F. of L ., thereby forming the Union . 15 Thereafter , super-
visory employees of the respondent made coercive statements in re-
gard ; to union membership and activity . Thus, on October 26 Fore-
man, Stephano stated . to Leslie Chatfield , an employee who had
applied for membership in the Union at the October 25 meeting, in
the presence of other employees , that "it would go hard with those" who
joined the Union . A few days later , Stephano stated to Chatfield
that "he was supposing that the company would shut down the plant"
because , employees became affiliated with the Union . During the
week following October 25 Foreman Farral stated to Lloyd Edding-
ton, employee in the soap department , "I have it on good authority
that, if there should be any labor trouble in the plant, it would be
closed down, and that the territories supplied by this plant , would be
supplied by the other plants of the Andrew Jergens Company."
During the same week, Forelady Santella told Clementine Bayless,
employee in the cream department , that "she knew the stockholders
of the company , and that they wouldn't stand for any foolishness,
they would just close down the plant ." 11 On or about November
15 The cards which employees signed at this meeting and thereafter were application
cards for membership in Soap & Vegetable Oil Workers Union, Local No 20283-A F. of L.,
Los Angeles and vicinity, and Soap & Edible Oil Workers Union, Local No 18409, Long
Beach and vicinity Prior, who distributed these application cards explained to the em-
ployees that the forms were only temporary, and that the employees would have their own
local labor organization in Burbank which would be known as " Soap and Cosmetic Workers
Union," and it similar explanation was made to employees by Palmer and Blackmon when
soliciting members for the Union thereafter. Prior testified that it was common practice
alien organizing new groups of employees to 'use such application forms and that similar
cards were used in starting other local labor organizations The testimony of numerous
employees who signed applications shows that they understood at the time they signed that
they were applying for membership in a local labor organization
11 Farral , Stephano , and Santella denied the above' statements but upon the entire record
we do not credit these denials
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
17, Forelady Odle interrogated Campbell, an employee under her
supervision, concerning her membership in the Union and informed
her that she would earn less money because of it.
On or about November 1 an unsigned notice appeared in the plant
announcing that the regular meeting of the Association would take
place in the evening of November 1, the first Monday in November.
The first Monday in the fnonth had been the regular meeting night
of the Association. Otto Braundsdorf, a maintenance employee, also
notified the employees by word of mouth that "we would have a
meeting that night as usual." Foreman Farral asked Lloyd Edding-
ton, an employee under his supervision, if he would attend the
meeting.
The meeting was held as scheduled. The name of the inside or-
ganization was changed from the Andrew Jergens Employees' As-
sociation to Independent Soap and Cosmetic Workers of Burbank,
California,17 but no changes in its structure were made. As Brauns-
dorf testified, "We went ahead in our regular way, our rules and
everything we get is just like them old things we had before; every-
thing is the same, only we changed our name to have no mistake
about names." Cordery, former vice president of the Association,
and Charles Bryan, former departmental representative in the Asso-
ciation, were elected president and vice president, respectively, of the
Independent.
At about the same time Cordery circulated petitions for member-
ship in the Independent, to be signed by the employees. Distribution
of the petitions took place in the plant. Ruth Eckland, an employee
and sister of Forelady Eckland, assisted Cordery in soliciting signa-
tures to the petitions. On November 2 Assistant Forelady Nichols
asked Grafstrom, an employee in her department who had refused
to sign the petition, why she did not sign and whether she wanted
to work or not. Signed petitions were placed on the desks of Fore-
ladies Santella and Eckland.
The activity of the respondent in relation to the formation of the
Union,and the Independent, at this time, is further revealed by a
memorandum prepared by General Manager Rothenberg on Novem-
ber 3 or 4. On the basis of this memorandum Rothenberg wrote a
letter to his superior in Cincinnati. The memorandum is as follows :
J.D.N.-Business is starting to slack off much earlier this year
than previously. Due mostly I think to the political unrest
and here on the Coast labor trouble. The Ariz. & N. Mex. men
are complaining that due to mines shut down they are unable
17 Subsequently the organization was incorporated and its name was changed to
Independent Soap and Cosmetic Workers' Union, Inc,
ANDREW JERGENS CO. OF CALIFORNIA 53.3
to pick up much new business. Jones in N. Mex. also advises
the agri. districts are hard hit. Cotton & Stock prices down
until the Merchants are very much discouraged. GEH reports
as similar condition in his territory. -Potatoes & other Staple
farm products hopelessly below a profitable price.
Last night we layed off 5 girls in the Soap Dept. & we'll
practically close this Dept. down next week-leaving some of
the Hand Wrappers & 3 men- on to clean up etc. This will
give us an opening to close down the Dryer for the week and lay
Blackman the dryer man off (one of the AFL men). In the
shipping room we will lay off 2 Packers inc. Palmer. We'll
move 2 of the girls from Soap Dept. up to the Cream Dept. and
lay off 2 girls there (Roth agitators). By this move we hope
to have a clean slate if the NLB step in & it will not delay out
shipments a particle. Have about 4300 gr 337 in stock and a
satisfactory stock of other soaps. Expect to resume full op-
erations Dec. 12th. We are hoping to lick this AFL gang, the
older men in the plant have now taken an active stand and have
reorganized the Co. Assn. and I 1318 have a majority of the
employees signed up-as willing to stand by a Co. Assn. We
presume Palmers first move will be to go to the AFL or the
NBL & they may call an election. If enough of the employees
signify a willingness to stay with the Co. Assn. it will at least
put a damper on the AFL activities for the present. Have-
ex-plained to the employees some of the actual facts re. our in-
tentions & what they may expect from the Union. I am hoping
some facts will sink in.
M. W. & Co. Glendale store has been closed since last Sat.
noon. Clerks on strike. Oakland is about to be tied up with
a clerks strike in 43 Retail Stores inc. C. S. & F., W. & S.,
H. C. P.,'S. R., F. W. W., Kress and other similar establishments.
We have already had cancellations on orders for these stores.
Also notice another small flare up at the Harbor. Dave Beck
from Seattle is in So. Cal. & claims he is going to make this
another Seattle as far as labor is concerned & I guess Biz. con-
ditions in the NW are not so good either as building has slacked
off considerably.
- The Steel Co. started operations yesterday and will have the
steel erected tonight. Then the riveting.
Tell Mr. Jergens they done a good job in cleaning up his
B A property. It looks good & will attend to it again next year.
7e Symbol for " I understand."
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 8 the Union held a meeting at a place known as the
Burbank Women's Club. Atwood, who had become assistant super-
intendent on October 10, ' and Foreman Van Hove stationed them=
selves on the lawn adjoining the meeting hall, and .engaged, in Van
Hove's words, in "window peeping." Upon their being discovered
by Palmer, they ran to Atwood's car which was parked in the vicinity.
Palmer invited them to attend the meeting but they declined the
invitation.
On November 29 the respondent ,posted a notice in the plant-setting
forth Section 7 of the Act, the respondent's alleged desire to respect
its employees' rights, and its alleged intention not to discriminate
against employees because of their "labor 'activities."
On or about December 6 Foreman Van Hove admittedly stated to
Helen Rogers, an employee, that he ,did not "'think unions was the
best proposition for 'the employees . . . that the Association was
better ...." Rogers testified that Van Hove -at this time also ques-
tioned her about her membership •in'the'Union, and stated •to her that
lay-offs were occurring because Palmer and Blackmon had not "let
the Association go just like they had started to," and that Palmer
and Blackmon would probably lose their jobs. William Weitzel, a
former employee,l" testified that Van Hove stated to him,on •or about
January 25, 1938, that "it looks like as 'if the A. F. of L. fellows are
all going to be out of a job." Van Hove denied making these state-
ments attributed to him by Rogers ,and Weitzel, but, upon the entire
record, we discredit such denials and find that, in substance, 'he made
these statements.
Cordery resigned as, president of the Independent 'prior to its in-
corporation on January 14, 1938, and was succeeded by Vice-President
Bryan. Yingling, former treasurer of the Association, became treas-
urer of the Independent. Cordery retained his membership in the
Independent and served on the -committee which arranged for its
incorporation.
On January 28, 1938, the Independent informed the respondent
by letter that it represented a majority of, the employees, attached
thereto a list of alleged members, and requested exclusive recogni-
tion. The respondent replied that it would defer its answer to the
request during the pendency of the hearing in the present -proceeding.
3. Concluding findings
Foremen and foreladies at the respondent's plant supervise the
work of employees in their respective departments, have the,power
to discharge employees for flagrant violation of rules, .and have, the
'° Weitzel 's employment ceased on February 21, 1938.
ANDREW JERGENS CO. OF CALIFORNIA 535
power to recommend discharge for other cause to the superintendent.
They also have the power to layoff and reinstate employees. Odle
is apparently an exception to the foregoing, since, although she is
designated on the record as forelady in the powder department and
supervises the work of that department, it appears that she is sub-
ordinate to Santella who is the head of both the cream and powder
departments and that she recommended to Santella whom to lay
off and reinstate. The respondent does not dispute the supervisory
status of its foremen and foreladies, namely, Eckland, Odle, Santella,
Farral, Stephano, Joyner, and Van Hove; or of those employees of
higher rank, namely, Atwood, assistant superintendent, Geneau, su-
perintendent, and Rothenberg, general manager.
The respondent disputes the supervisory status of Cordery, Bryan,
and Nichols. 'Cordery was an assembler in the shipping department
who transmitted orders from the foreman to employees in that de-
partment, supervised the work of packers therein, and was considered
an assistant foreman by some of such employees. Bryan was in
charge of the receiving division of the shipping department and
gave orders to from one to three employees under him, depending
on the amount of work in his division. Cordery and Bryan 'were
the first and second oldest employees, respectively, in.their depart-
ment, and each received an hourly rate of pay of 721/2 cents, 5 cents
per hour more than any other employee in the department, and a
rate of pay appearing under the category "assistant to foreman"
on the respondent's minimum wage schedule. No employees other
than Cordery or Bryan were designated at the hearing as assistant
foremen or as assistants to foremen in the shipping department.
Nichols, sample girl in the soap department, gave orders to em-
ployees in her department, acted as forelady and assistant forelady
in their absence, and was considered a forelady or assistant forelady
by employees in her department. We find that Cordery, Bryan, and
Nichols are supervisory employees.
We find that Atwood, Bryan, Cordery, Eckland, Farral, Joyner,
Nichols, Odle, Santella, Stephano, and Van Hove acted in behalf of
the respondent in forming, administering, supporting, participating
in, and interfering with, the Association and the Independent or
either, as set forth above, because of their supervisory positions; be-
cause they acted pursuant to the desire, plan, and intent of the
respondent to defeat the organization of its employees by -the Ameri-
can Federation of Labor; and because of the other circumstances
set forth in this record.
The respondent, through its supervisory employees, formed •the
Association for the purpose of forestalling outside organization;
participated in its administration, by membership, office-holding, and
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
attendance and activity at meetings; and solicited employees to at-
tend meetings. The respondent interfered with the Association
through the statements and resignations of its supervisory employees,
calculated to discourage the Association from making a wage 'de-
mand. In sum, the respondent supported,, interfered with, and
sought to dominate the Association.
The Independent succeeded the Association. Neither the formal
dissolution of the Association nor its change 'of name to the Inde-
pendent, can conceal the continuity between these organizations.
For example, General Manager Rothenberg testified that it was his
opinion that the Independent was the outgrowth of the Association.
Bryan testified that "in a certain sense" there was no real change
between the Association and the Independent. The first meeting of
the Independent was announced as the regular meeting of the Asso-
ciation, and Cordery testified that the Independent petition "was
merely a heading stating the name of the organization, and the date,
and what the petition was for, what they were signing for, that
they understood it was a membership in the reorganized Andrew
Jergens Employees' Association . . . The Andrew Jergens Company
Association-my daughter made a mistake in the heading. She had
Andrew Jergens Employees' Association, and she mistyped it Andrew
Jergens Company Association. I didn't notice it at the time ..."
Cordery, Bryan, and Yingling were officers of both the Association
and, the Independent.
The respondent did "nothing to mark the separation between the
two [organizations], and publicly to deprive the successor of the
advantage of its apparently continued favor." 20 The respondent,
indeed, wished "to lick this A. F. L. gang" through the "reorgan-
ized . . . Co. Assn.," or "at least," through it, to "put a damper on
the AFL activities for the present." To that end, the respondent
discriminated against union sympathizers, as noted below ; and "ex-
plained to the employees some of the actual facts re our intentions
and what they may expect from the Union." The respondent also
supported the Independent by the above-mentioned acts, including
supervisory participation in the Independent, solicitation, surveill-
ance, threats, and anti-union statements. The posted notice of No-
vember 29, while purporting, in general terms, to assure the em-
ployees freedom from interference, restraint, coercion, and discrimi-
nation, "neither renounced the Company's unfair labor practices"
in respect to the Association and the Independent "nor promised
their abandonment, and left as a candidate the Independent, toward
20 Westinghouse Electric d Mfg. Co. v . N. L R. B. (C. C. A. 2) June 10, 1940, 6 LRR
572. Kansas City Light d Power Co . v. N. L. R B.,, 111 F. (2d) 340 (C. C. A. 8).
ANDREW JERGEiN?S CO. OF CALIFORNIA 537
which the unrenounced unlawful activities of the company had been
directed"; and accordingly "fell far short of conveying `to the em-
ployees the knowledge of a guarantee of an unhampered right in
the future to determine their labor affiliations .' 11 21 Besides, the
respondent committed fresh unfair labor practices subsequent to the
posting of the notice.
We find that the respondent has dominated and interfered with
the formation and, administration of the Association and the Inde-
pendent and has contributed support to them ; that by its aforesaid
acts, the respondent has interfered with , restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
B. Discrimination
1. The discharge of Ed Young on June 18, 1937
Young began working for the respondent as a packer in the ship-
ping department on February 17, 1936, at a weekly wage of $16.
He worked continuously until his employment was terminated on
June 18, 1937, at which time he was earning $22 a week.22 The
complaint alleges and the answer denies that he was laid off on June
18 because of his union and other concerted activity.
For some months prior to June 18 Young had been dissatisfied
with his wages. In and after April 1937 he, Palmer, Blackmon, and
other employees openly discussed in the plant the matter of wage
rates and organization of the respondent's employees. In May or
June 1937 Young informed Assistant Superintendent William Shop-
man and Foreman Atwood that the employees should receive a wage
increase. Young was one of those with whom Prior conversed on
June 10 about organizing a union, and Assistant Superintendent
Shopman stood behind Young during the conversation. We have
noted above Young's conversation with Foreman Van Hove , on or
about June 15 concerning wage rates and union organization at the
respondent's plant. During the course of this conversation Van
Hoye made anti-union statements and General Manager Russell en-
couraged such statements, by stating : "That a boy, Van, give them
the devil."
On June 18, 3 or 4 days following the last-mentioned incident,
after consultation with Assistant Superintendent Shopman, Foremen
Atwood discharged 23 Young, informing him that he was being laid
21 N. L. R. B v. Falk Corp , 308 U. S. 453.
u On the day of his discharge , he, among other employees , received a $2 increase in pay.
23 At the hearing counsel for the respondent stated that Young's employment was finally
terminated on June 18.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off, and that Atwood hated to see him go.21 Atwood was unable to
give him a reason for his selection for lay-off, and no reason was
assigned on the slip notifying him of his release. Young asked
General Manager Russell the,reason for his lay-off. Russell stated
at first that Young had made too many mistakes. Young asked
Russell to check on the number of his mistakes, stating that he con-
sidered that he had not done so badly, having made four or five
mistakes during the course of his employment. Russell replied that
a check was unnecessary, since the respondent was "laying off" some
of the junior employees. Thereupon Young informed Russell that
lie was not a new employee, that he 'had, been in the respondent's
employ for 11/., years, and that he had seniority over four employees,
Whom he named, in the shipping department. Russell then stated he
would investigate the matter of Young's lay-off and that the re-
spondent would probably recall him to Work within a week.
Young was never recalled and has never returned to work for the
respondent, although an employee hired subsequent to his discharge
began to work in the shipping department about September 20, 1937.
The respondent's business decreased in June 1937. Young, how-
ever, was the only employee in the shipping department discharged
at the' time. He had seniority over 6 employees in his department of
11 employees. Atwood testified, without explanation, that seniority
was not considered at all in the case of Young, although thereafter,
as set forth below, when making lay-offs in-the shipping department,
lie did consider seniority, and employees with the least seniority
were in fact the first to be laid off.
Atwood testified further that he selected Young for lay-off because
Young was the least efficient employee in the shipping department,
had made several mistakes in packing, and was not dependable. At-
wood didi not specify, however, what mistakes Young had made.
The respondent introduced into evidence a schedule purporting
to show the comparative packing efficiency of the five packers during
the period from June 1 to June 18, 1937. Office Manager Meeker
testified as to the contents of the time slips of these packers. The
time slips purport to show the number of hours spent by each packer
in the packing and shipping department or on the truck during the
same period. Meeker's testimony shows that Young, Joseph Mul-
leda, and Ed Yingling, three of the packers, spent the same number
of hours in the shipping department during that period, that. Nor-
man Heywood, another packer, spent 5 more hours in that depart-
ment than the other packers, and that Palmer spent 8 hours less.
24 Young testified and Atwood denied that Atwood also stated that "it wasn't his fault
that [Young] was being laid off; that some of the others didn't want to keep [Young]
on." We need not resolve this conflict.
ANDREW JERGENS CO. OF CALIFORNIA 539-
The schedule, in evidence compares the packing performances of the
five employees in three respects, and, if accepted at face value, shows
that Young occupied third, fourth, and fifth places, respectively,
as to the three criteria of measurement. Palmer occupied third,
fourth. and fifth places respectively.25 None of the other packers oc-
cupied,'three places of equal or lesser rank than Young. Since the
weight attached by the respondent to each criterion'does not appear,
and since each packer did not work the same number of hours in
the shipping department during the period in question, we have no
means of ascertaining whether the respondent would have inferred
from the schedule and the time slips, taken at face value, that Young
was the least efficient employee. Moreover, the schedule cannot be
taken at-face value because it purports to compare packing per-
formances only, whereas at times packers engaged in non-packing
work too. Thus packers, including Young, were at times sent into
the receiving division of the shipping department. Also, Palmer
testified, and under the circumstances, we find, that during the weeks
prior to his discharge, Young spent considerable time doing clean-up
and other work. Thus, the comparison as to packing performance is
deficient in that neither the schedule nor the time slips reveal how
much time the employees actually spent in packing work, and the
comparison as to general performance is incomplete in that the record
does not show- how Young compared with his fellow employees in
non-packing work. Finally, the schedule upon which the respondent
relies now to justify its selection of Young for discharge was not
prepared until after Young's discharge, and it only covers a short
period prior thereto. We conclude that the schedule and time slips
do not prove that the respondent determined to discharge Young
upon the basis of efficiency.
In view of the foregoing conclusion, the statements and conduct
of Atwood and Russell on the day of the discharge, the unexplained
failure of the respondent to consider seniority in the case of Young,
and the respondent's anti-union policy as shown by this record, we
are convinced that the respondent selected Young for discharge be-
cause he engaged in union and other concerted activity.
We find that the respondent discriminatorily discharged Ed Young
and has failed and refused to reinstate him because of his union and
other concerted activities, thereby discouraging membership in a
labor organization and interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in Section 7 of
the Act.
'a The schedule shows Young in.next to last place as to weight packed, and Palmer-in last
place; Young in third place as to number of cartons packed and Palmer in last place;
Young in last place as to number of ini oices packed, and Palmer in third place.
540 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
After his discharge until September 1937 Young earned about $106
at temporary work. In September 1937 he was employed by the
National Cable and Metal Company, Glendale, California, at first
receiving $15 a week and, when laid off for a 2-week period at the
time of the hearing, earning $19 per week. At the latter employment
he earned $316.48. He stated at the hearing that he would accept
reinstatement to his former position.
2. The lay-offs, delayed reinstatements, and refusals to reinstate
betweeli November 3, 1937 and January 31, 1938
The complaint alleges that on and after November 3, 1937, the
respondent .discouraged membership in the Union by discrimination
in regard to the hire and tenure of employment of 42 named em-
ployees, herein sometimes referred to as charging employees.
a. General
Production in the soap department was curtailed on and after
November 3, 1937. Production in the cosmetics department, which is
divided into the cream and powder departments, and work in the
shipping department, slackened in the middle and latter part of No-
vember. Inventory was taken at the plant for 2 or 3 days following
November 25, while operations were curtailed or at a standstill.
The respondent contended in its answer and at the hearing that
the 42 charging employees were laid off solely because of business
conditions.26 It contended further that production was curtailed
throughout the month of November 1937 and thereafter, (1) because
orders had fallen off and the amount of shipments had declined,
and (2) because the respondent's customary reserve stock had been
built up. A notice was posted in the plant on November 5 stating
that curtailment would take place because of a falling off of orders,
As to the first alleged cause for curtailment, the record shows that
shipments of the respondent's product amounted to $129;898.37 in
October, $97,602.35 in November, and $41,596.01 in December. This
proof, however, is in terms of the average shipments throughout the
above months, and does not show how much of the slump in ship-
ments, if any, occurred during the first part of November, when the
curtailment in the soap department took place. As to the second
alleged reason for the curtailment, Rothenberg testified that he
thought the respondent had almost built up its reserve stock by the
28
Among other things, counsel for respondent sought to prove at the hearing that many
of the employees had been employed on a temporary basis during a rush period in the plant
early in 1937 . The evidence shows that the number of employees on the pay roll in July
was the same as the number in January , prior to the rush period . Aside from that fact,
however, the relevant inquiry is, not whether the employees were temporary or permanent
but why they were laid off.
ANDREW JERGENS CO. OF CALIFORNIA 541
'end of November 1937. Rothenberg also testified that toward the
end of 1937 and during the first few months of 1938 the respondent
was compelled to reduce its inventory of certain products because
of impending changes in the packaging of such products.
We may assume for the purposes of this case that the respondent for
business reasons required fewer employees after October 1937. By
such assumption, however, we have by no means disposed of the
allegations of discrimination, since we must consider further whether
or not the respondent's selection of employees for retention and re-
instatement involved discrimination against the Union.
All of the charging employees were members or applicants for
membership in the Union. The respondent had knowledge of the
activity in or affiliation with the Union, or lack of affiliation or
sympathy with the Independent, of its employees. The Rothenberg
memorandum shows such knowledge. As noted above, the Novem-
ber 8 meeting of the Union was spied on by Assistant Superintendent
Atwood and Foreman Van Hove. Many employees refused to sign
the petition for membership in the Independent. Also as noted
above, signed petitions'were placed on the desks of Foreladies Santella
and Eckland. Other evidence referred to below likewise shows that
the respondent had knowledge of the union sympathies of charging
employees.
The lay-offs were preceded by a speed-up of production in the
various departments during the latter part of October. As indi-
cated above, this speed-up was accompanied by statements of super-
visors hostile to the Association's demand for a wage increase. We
believe that the respondent designed the speed-up at least in part
for the purpose of creating a work slack, so that it could lay off union
sympathizers.
The respondent's managerial employees testified that lay-offs during
the period under review, as in the past, were made on the basis of
efficiency and that seniority was not considered. Superintendent
Genedu testified that he instructed Joyner and Atwood to lay off
employees in accordance with efficiency and that the procedure was
followed in every department. Joyner and Atwood testified, however,
that'seniority was considered in the shipping department as set forth.
below. Moreover, Rothenberg testified that Florence Lapask and
Emma Rogers, who were transferred from the soap to the cream
department to replace two "agitators" there, were not laid off because
they were "older girls" and had been with the respondent for a long
time. Rogers, who appeared at the hearing as a witness for the re-
spondent, testified that she was transferred, and not released ,'because
she was one of the senior employees and that she thought that it was
the respondent's practice to lay off junior employees and retain
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
senior employees during slack periods. It appears from the testi-
mony of at least two other employees, Eudalia Watkinson and Mildred
-Gribble, that that in fact had been the respondent' s practice in
previous years. Manager Russell's remark to Young, that -the re-
spondent was laying off some of the junior employees, will. be recalled
in this connection. We conclude from all the evidence that the
respondent's practice was to consider, if not strictly follow, seniority,
in laying off and reinstating employees.
The lay-off of many employees whose union sympathies ran counter
to the- respondent's labor policy, as contrasted with its retention in
comparable positions of other employees who had less seniority and
who were not shown to be more 'efficient, further shows that the
respondent engaged in discrimination.
We have noted above that following the formation of the Union
supervisory employees made statements to employees that "it would
go hard with those" who joined the Union and that the plant would
shut down as a result of the formation of, or affiliation of employees
with, the Union. These statements, the Rothenberg memorandum,
and the further evidence set forth below also convince us that the
respondent discriminated against many of the charging employees,
by laying them off, delaying their reinstatement, or refusing to re-
instate them.
b. The, lay-offs in the soap, shipping, and cosmetics departments on
November 3 and 5, 1937; the lay-off of Lena Holmes from the soap
department on November 16, 1937
On November 3 and 5, 1937, the respondent laid off 22 employees
from the soap, shipping, and cosmetics department. Of these, 21
were affiliated with the Union. The anti-union bias which motivated
these lay-offs appears clearly from the following portions of the
Rothenberg memorandum :
Last night we layed off 5 girls in the Soap Dept. & we'll prac-
tically close this Dept. down next week-leaving some of the
Hand Wrappers & 3 men on to clean up etc. This will give us
an opening to close down the Dryer for the week and lay Black-
man the dryerman off , (one of the AFL men)., In the shipping
room we will lay off 2 packers inc. Palmer. We'll move 2 of the
girls from Soap Dept. up to 'the Cream Dept. -and lay off 2
girls there (Both agitators). By this move we hope to have
a clean slate if the NLB step in & it will not delay . our ship-
ments a particle. Have about 4300 gr. 337 in stock and a satis-
factory stock of other soaps. Expect to resume full operations
Dec. 12th. We are hoping to lick this AFL gang, . . . Have
k
ANDREW JERGENS CO. OF CALIFORNIA 543
explained to the employees some of the actual facts re our in-
tentions and what they may expect from the Union. I am
hoping some facts will sink in.
(1) Soap department
On November 3 and 5 the respondent laid off 18 of the 32 27 em-
ployees in the soap department. At the time of the lay-off there
were 21 union members or applicants for membership, in that de-
partment. The 18 laid off from this department were such members
or applicants and are named in the complaint.
Of the 32 employees, 23 were women, and 15 of -the 23 were mem-
bers of, or applicants for membership in, the Union. Fourteen of
the, fifteen were laid off on November 3 or 5, and the remaining
woman union member, Lena Holmes, was absent on vacation from
November 8 through November 14 and was laid off on November
16. Two women employees, Florence Lapask and Emma Rogers,
both non-union employees, were transferred to the cream depart-
ment. The remaining women employees in the soap department,
two of whom were absent due to illness, and all of whom were non-
union employees, were not laid off. `Of nine men employees in the
soap department on November 5, six were union members or appli-
cants and four of them were laid off on that date.
In view of the Rothenberg memorandum disclosing the anti-union
bias underlying soap department lay-offs, the disproportionate num-
ber of union members laid off from the soap department, the reten-
tion or reinstatement in many cases of non-union members having
less or no greater seniority than union members who were laid off
or not reinstated, the speed-up designed in part to create a work
slack, the respondent's hostility toward the Union, its -sponsorship
of the Independent, and the other facts set forth herein; we find
that the following 19 employees were discriminatorily laid off from
the soap department in November 1937.
Florence Arnold was hired by the respondent in March 1936 in
the soap department. She applied for membership in the Union on
October 30, 1937. She was laid off on November 5 and reinstated on
November 22, 1937.28 We find that she was laid off because of her
n This figure does not include Harold Gratias who appears on the pay roll under the soap
department, and who was transferred to the shipping department about October 20, or
Egbert Sieekert, a maintenance employee, or William Weitzel, fireman, the latter two also
appearing on the pay roll under the soap department.
28 Arnold , among other soap -department employees , was also laid off on November 24 and
did not work during the inventory period it appears, however, that most employees were
normally laid off during inventory periods each of which generally lasted 2 or 3 days We
shall not discuss these lay-offs except whet e they are alleged in the complaint to be
discriminatory, or appear to be a continuation of discrimination against employees
previously discriminatorily laid off.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliation with the Union. As a soap-press operator Arnold earned
471/2 cents per hour at the time of her lay-off. When doing other
work she earned 421/2 cents hourly.
William G. Blackmon was hired in August 1934, in the shipping
department. He worked steadily until his lay-off on November 5,
1937, when he was engaged in operating the soap drier in the soap
,department. He was reinstated on November 22.
In and after April 1937 Blackmon had discussed in the plant
with other employees the matter of wage rates and organization of
the employees. As noted above, Forelady Odle had threatened to
"get even with" Blackmon at the second meeting of the Association
on June 21 after he had objected to her being nominated for office.
At the meeting of the Association of October 4 Blackmon urged em-
ployees to vote in favor of adoption of the resolution- requesting
increased minimum rates of pay. Blackmon's action "disgusted"
Farral, his foreman, who was present at the meeting. Farral conse-
quently resigned from. the Association following the meeting, and
informed Blackmon that he and other employees were "agitating."
Blackmon joined the Union, at its formation on October 25, and be-
came a leader therein. He was active in soliciting employees for
membership in the Union at the October 25 meeting and thereafter.
During his lay-off he attended a conference between the respondent
and the Union on November 11, 1937, which is discussed below.
General Manager Rothenberg admitted that Blackmon's operation
.of the soap dryer was satisfactory. Blackmon was laid off although
he had seniority over Oscar Nevins, another employee in the soap
department. Nevins signed an application for membership in the
Union but he also joined the Independent "when it first started"
and later withdrew from the Union. Blackmon had in the past
operated the pin-press plodder which Nevins operated and could
also do other work which Nevins did. There is no evidence that
Blackmon was less efficient than Nevins.
Blackmon was expressly named in the Rothenberg memorandum
as one of the,A. F. of L. men." General manager Rothenberg
admitted that it was his impression that Blackmon was in the same
category as the "agitators" referred to in the memorandum. We
find that he was laid off on November 5, 1937, because of his mem-
bership and activity in the Union. At the time of his lay-off Black-
mon -was earning $27 weekly. During his lay-off he had no other
employment.
Glen Campbell was hired by the respondent on September 14, 1936,
in the soap department and worked continuously until his lay-off
on November 5, 1937. He was reinstated on December 28.
ANDREW JERGE TNTS CO. OF CALIT'ORTNTIA 545
During the course of his employment he never received any com-
plaints about his work. He became affiliated with the Union on
October 28 , 1937 . We find that Campbell was laid off on November
5 because of his affiliation with the Union.
At the time of his lay-off Campbell earned $26 weekly. He had
no other employment during his lay-off.
Lola Cox was hired by the respondent t on March 9 , 1936, in the
soap department . She was laid off on November 5 , reinstated on
November 15, again laid off on November 16,. and reinstated on No-
vember 22, 1937. She applied for membership in the Union on
November 3. We find that Cox was laid off on November 5 and
November 16, 1937, because of her affiliation with the Union.
L. H. Eddington was hired on February 3, 1937 , in the shipping
department . He was laid off from the soap department on Novem-
ber 5, 1937 .- At the time of the hearing he had not been reinstated.
He received no complaints about his work from any supervisory
employee during the course of his employment . Between February
3 and November 5 , 1937 , he received four wage increases.
He applied for membership in the Union on October 27 and at-
tended meetings thereof. During the week following October 25
Braunsdorf solicited Eddington to sign the Independent petition.
Eddington refused to sign the petition . As noted above, during the
same week Eddington 's foreman, Farral , informed him that the
respondent would close the plant if there were "labor trouble." On
another, occasion during the same week one Lally , an employee in
the soap department , remarked in the presence of Farral, and
Eddington that the employees who had affiliated with the Union
would not improve their condition but -would make matters worse for
themselves. Farral concurred with the statement, "Yes, of course."
When he was laid off on November 5 by Farral , the latter stated
that Eddington would be recalled when he was wanted. He has
never been recalled. On three different occasions in 1937 after
November 5 Eddington applied for reinstatement without success.
We find that the respondent laid off Eddington on November 5,
1937, and thereafter failed and refused to reinstate him because of
his affiliation with the Union , and his lack of affiliation with the
Independent.
At the time of his lay-off Eddington earned $23 per week. Since
November 5 he has worked several Saturday afternoons for his
brother, receiving therefor a share of stock, the value of which he
did not know . He desires reinstatement to his former position.
Sue Fields was hired by the respondent on September 10, 1936,
in the soap department . She was laid off on November 5, and
reinstated on November 22, 1937.
323428-42-vol 27-36
.546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She applied for membership in the Union on October 30, and
thereafter attended all union meetings , including the meeting of
November 8 on which Assistant Superintendent Atwood and Fore-
man Van Hove spied . On or about November 1 Ruth Eckland,
sister of Forelady Gladys Eckland, came to the door of the dressing
room where Fields and other girls were present and asked the group
whether any of them wanted to sign the Independent petition.
No one made any reply except Mildred Gribble , a soap -department
'employee, who stated that she did not care to sign the petition. As
noted above , signed petitions were placed on the desks of Foreladies
Eckland and Santella.
We find that Fields was laid off on November 5, 1937, because of
her affiliation with the Union, and her failure to affiliate with the
Independent.
Mary Gracey was first employed by the respondent on-January 27,
1937, in the soap department at $12 per week . She was laid off
on November 3, 1937, at which time she was earning $17 per week.
During the course of her employment she received no complaints
about her work. Indeed, on a few occasions she received compli-
ments from Forelady Eckland and Assistant Forelady Nichols.
Gracey applied for membership in the Union on October 30, and
thereafter attended meetings thereof. She was among the group of
employees who were solicited in the dressing room by Ruth Eckland
to sign the Independent petition . As noted above none in the group
signed the petition.
Although Forelady Eckland told Gracey when she was laid off
on November 3, that she would want Gracey back soon, and would
call her, Gracey was not reinstated . She was not recalled although
-Phoenix, nonunion employee with equal seniority , who had been
absent due to -illness, returned to work in the soap department on
December 28 . Phoenix worked on the Woodbury wrapper. Gracey
had in the past worked on the Woodbury wrapper. There is no
evidence that Gracey was less efficient than Phoenix.
We find that the respondent laid off Gracey on November 3, 1937,
and thereafter failed and refused to reinstate her, because of her
affiliation with the Union, and her failure to affiliate with the
Independent.
Since her lay-off Gracey has not found other employment. She
desires reinstatement to her former position.
Melba Grafstrorn was hired in the soap department on January
27, 1937. She was laid off on November 3, 1937 , and at the time of
the hearing had not been reinstated. -
During the course of her employment she received no complaints
about her work. On one occasion , after she had worked for 3 weeks
ANDREW JERGENS CO. OF CALIFORNIA 547
in the cream' department, Forelady Santella told her that she was
sorry Grafstrom was returning to the soap department, since Graf-
strom's work had been satisfactory.
Grafstrom became affiliated with the Union on October 30, and,
thereafter attended one or two meetings thereof. About November
1 she refused to sign the Independent petition, upon being solicited
by Ruth Eckland. On November 2 Assistant Forelady Nichols asked
her why she did not sign the petition and whether she wanted to
work or not. Grafstrom told her she was in favor of the Union.
When she was laid off on November 3 Forelady Eckland.tol'd Graf-
strom that her lay-off was temporary, and that she would call her
back. Grafstrom applied for reinstatement in the latter part of
December 1937 without success. She was not recalled although
Phoenix, non-union employee with equal seniority, who had been
absent, due to illness, returned to work in the soap department on
December 28. Both Phoenix and Grafstrom worked on the Wood-
bury wrapping machine and the former had in the past been laid
off more often than Grafstrom.
We find that the respondent laid off Grafstrom on November 3,
1937, and thereafter failed and refused to reinstate her, because of
her affiliation with the Union, and her refusal to join the
Independent.
At the time of her lay-off Graf strom earned $17 per week. There-
after she was employed temporarily at household work for which she
received $10 weekly plus board whose value was estimated by her at
$4 or $5 weekly.
Mildred Gribble was first employed by the respondent in the soap
department on September 15, 1936, at $9 per week and at the time
of the hearing in January 1938, she was earning $17 per week. Be-
tween September 15, 1936 and November 5, 1937, she was laid off
for only 1 day. Gribble was laid off on November 5 and reinstated
on December 15, 1937.
She applied for membership in the Union on October 30, and there-
after attended all meetings, thereof. About November 1 she refused
to sign the Independent petition, upon being solicited by Ruth
Eckland.
We find that Gribble was laid off on November 5, 1937, because
of her affiliation with the Union, and her refusal to join the
Independent.
Jeama Mills was hired on January 27, 1937, in the soap depart-
ment. She was laid off on November 5, reinstated on November 15,
laid off again on November 16 and reinstated on November 23, 1937.
She applied for membership in the Union on November 3, 1937, and
attended one meeting thereof in the middle of November.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that Mills was laid off on November 5 and November 16,
1937, because of her affiliation with the Union.
C. F. Murphy was hired on February 26, 1934, in the shipping
department. He was laid off on November 5, 1937, at which time
he was working in the soap department. He was reinstated on
December 1, 1937.
In June 1937 Superintendent Geneau told Murphy that he would
eventually be promoted to Foreman Farral's position and that
Farral would be promoted also.
Foreman Farral "had an idea" immediately after the October 4
meeting of the Association that Murphy and Blackmon were en-
gaging in miion activities. Following the meeting Farral informed
Blackmon that he and other employees were "agitating." Murphy
applied for membership in the Union on October,25 and thereafter
attended meetings thereof. On November 11, during his lay-off,
Murphy, as a representative of the' Union, attended the conference
with. the respondent referred to below.
Murphy was laid off on November 5, although Nevins, having less
seniority than Murphy, was not laid off. Nevins signed an applica-
tion for membership in the Union but he also joined the Independent
when it was first organized and later withdrew from the Union.
After the lay-offs of Murphy and Eddington, Nevins operated both
the Woodbury- plodder and the pin-press plodder, machines previ-
ously operated by Murphy and Eddington respectively. Murphy,
with more seniority than Nevins, could also operate and had in the
past operated, the pin-press plodder, and could also do other work
done by Nevins. Farral testified that Murphy was not as efficient
on the pin-press plodder as Nevins. Farral admitted that Murphy
was "fairly good at it." On this record we do not credit Farral's
testimony that Murphy was not as efficient on the pin-press plodder
as Nevins.
We find that Murphy was laid off on November 5, 1937, because
of his affiliation with the Union. 'At the time of his lay-off on
November 5, he earned $27 per week.
Shea Payssinger was hired on January 26, 1937. She was laid off
on November 5, 1937, from the soap department, reinstated on
November 15, laid off again on November 16, and reinstated on
November 22, 1937.
During the course of her employment she received no complaints
about her work. On at least one occasion Forelady Odle told her
than she was a very good worker.
Paysinger became affiliated with the Union on October 30, and
thereafter attended meetings thereof.
ANDREW JERGENSJ CO. Or CALIFORNIA 549
We find that the respondent laid off Paysinger on November 5
and November 16, 1937 , because of her affiliation with the Union.
Ilene Pillow was hired on-September 10, 1936, in the soap depart-
ment. She was laid off on November 3 , and reinstated on December
16, 1937.
During the course of her employment she received no complaints
about her work. She was never laid off prior to November 3.
On October 30, 1937, she affiliated with the Union and thereafter
attended meetings.
We find that Pillow was laid off on November 3, 1937, because
of her affiliation with the Union.
Ruth Rhoads was hired on September 21, 1936, in the soap depart-
ment. She was laid off on November 5 and reinstated on November
22, 1937.
During the course of her employment she received no complaints
about her work. She affiliated with the Union on October 30, 1937;
and thereafter attended all meetings thereof except one.
We find that the respondent laid off Rhoads on November 5, 1937,
because of her affiliation with the Union. At the time of her lay-off,
she earned $17 weekly.
Betty Rowe was hired on January 27, 1937, in the soap department.
She was laid off on November 3 and reinstated on December 16, 1937.
During the course of her employment she received no complaints
about her work; in fact , she received compliments from Assistant
I+'orelady Nichols. She received three or four wage increases during
her employment.
On October 30 she affiliated with the Union and thereafter attended
meetings thereof. On or about November 1 she refused to sign the
Independent petition which Ruth Eckland presented to a group of
girls in the rest room , as noted above . She attended the November
1 meeting ' of the Association , but•left before adjournment.
We find that Rowe was laid off on November- 3, 1937, because of
her affiliation with the Union, and her refusal to join the Independent.
At the time of her lay-off she earned $17 per week.
Arlene Stewart was hired on October 5, 1936, in the soap department
at $9 per week . When she was laid off on November 5,1937 , she earned
$17 per week . She received no complaints about her work during the
course of her employment . She was reinstated on December 15, 1937.
She affiliated with the Union on October 30, and thereafter attended
meetings thereof . She attended the Independent meeting of Novem-
ber 1 but left before adjournment.
We find that Stewart was laid off on - November 5, 1937 , because
of her affiliation with the Union, and her lack of interest in the
Independent.
550 DECISIONS OF NATIONAL LABOR RELATIONS' 'BOARD
During her lay-off she had no other employment.
Dolores Van Holm was hired on October 5 , 1936, in the soap de
partment . She was laid off on November 3, and reinstated on Decem
her 15, 1937.
During the course of her employment she received no. complaints
about her work. She received about seven wage increases'.
On October 30, she affiliated with the Union, and thereafter attended
meetings thereof.
We find that Van Holm was laid off on November 3, 1937 , because
,of her affiliation with the Union.
Eudalia Watkinson was hired on January 17, 1933, in the soap de-
partment . She was laid o$ on November 5, reinstated on November
15, laid off again on November 16, and reinstated on November 22,
1937.
She applied for membership in the Union on October 30, 1937.
We find that Watkinson ivas laid off on November 5 and November 16,
1937, because of her affiliation with the Union.
Lena Holmes was first hired on Februar y 2, 1925, in the soap de-
partment , left her employment on September 1, 1928, and , returned to
work on September 1, 1931. She was laid off on November 16, 1937.
The week prior thereto she was absent on vacation . She was reinstated
on November 22, laid off again on November 24 and reinstated on
December 1, 1937. The last period of her lay-off, November 24 to
December 1, was during the time inventory was taken at the plant.
During the course of her employment Holmes received a number
of compliments about her work from ' General Manager Russell,
Superintendent Geneau , Assistant Superintendent Shopman and
Forelady Eckland. Occasionally she received a complaint about her
work from Foreman Van Hove.
Holmes applied for membership in the Union on October 30, and
thereafter attended meetings thereof. About November 1 she was
solicited by Cordery to sign the Independent petition . She refused
and told him she was a member of the Union.
When she was laid off on November 16 Holmes was the only woman
employee in the soap department affiliated with the Union who had as
yet received no lay-off. We find that Holmes was laid off on that date
because of her affiliation with the Union , and her refusal to join the
- Independent.
Holmes was laid off again on November 24, and was off during the
inventory period, although in previous years, she had always been
asked to assist in taking inventory . Forelady Eckland admitted that
Holmes' lay-off during inventory in November 1937 was the first such
lay-off in approximately 3 years. She testified without explanation
that she had no work for Holmes during inventory in 1937, although
ANDREW JE'RGENS Co. OF CALIFORNIA 551
it appears that inventory was taken as usual. Under the circum-
stances we are convinced that she was again laid off on November
24 because of her affiliation with the Union, and her refusal to affili-
ate with the Independent. We so find.
At the time of her lay-offs Holmes was earning 471/2 cents per
hour while operating the Woodbury wrapping machine and 421/2
cents per hour at other work. During her lay-off between November
16 and 22, 1937, she had no other employment.
(2) Shipping department
On November 5, 1937, the respondent laid off two employees in the
shipping department, Ralph Palmer and Harry Atwood. Atwood
quit the respondent's employ shortly after his lay-off, and.he is not
the. subject of complaint in this proceeding.
Ralph Palmer was hired on February 2, 1937, in the shipping de-
partment at 45 cents per hour. He was laid off on November 5, 1937,
when he earned 55 or 571/2 cents per hour. He has not been rein-
stated.
In and after April 1937, Palmer and other employees engaged in
discussion concerning the, formation of a labor organization. As
noted" above, on or about May 1 and June 10 Prior, A. F. L. repre-
sentative, spoke to Palmer and other employees about organizing a
union. Thereafter Palmer was elected president of the Association.
He led in the effort to make the Association independent of the re-
spondent, and then to dissolve it. Palmer was a leader in the forma-
tion of the Union, and after its formation on October 25 became its
president.29
At the time of his lay-off both General Manager Rothenberg and
Foreman Joyner of the shipping department knew that Palmer was
actively engaged in promoting the Union.
The respondent adduced testimony at the hearing which purported,
to show that Palmer was employed to undergo a training period in
the shipping department, and then to become a salesman; that his
work was terminated on November 5 after he refused the offer of a
salesman's job, and that this refusal was a factor which led to his
lay-off. The respondent does not explain why Palmer's refusal did
not cause his discharge, instead of his lay-off. The record shows that
Palmer was considered to be "sales material" when he was employed,
and that the respondent's shipping department was a training ground
for salesmen of the Jergens Woodbury Sales Corporation of Cali-
fornia, although not all employees employed in the shipping depart-
ment were hired with a view to becoming salesmen. Shortly after
10 The record does not reveal noon what date Palmer became president
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his employment in February 1937 John Henry, sales manager of the
sales corporation, visited Palmer and discussed with him in general
the matter of sales work. According to Henry, Palmer did not seem
to follow up his "lead," and it appears that Henry abandoned the
idea that Palmer would become a salesman. It is significant that
Henry did not again broach the subject of sales work to Palmer until
October 1937 after Palmer had become active in attempting to make
the Association an organization independent of the respondent. At
that time Palmer refused the offer of a salesman 's job for the reason,
among others, that he did not want to desert the Association, since
the respondent had not yet answered the Association 's request for a
wage increase. We are convinced that the offer of a salesman's job
to Palmer in October was the first attempt by the respondent to rid
itself of him because of his militancy in the Association.30 We con-
clude that the respondent did not lay off Palmer on November 5 be-
cause he refused a salesman 's position.
The respondent also adduced testimony purporting to show that
Palmer was absent from his work on numerous occasions prior to
his lay-off while visiting other departments in the plant and that
such conduct on his part was a factor which led to his lay-off. The
evidence shows that Palmer on a number of occasions.prior to his
lay-off visited departments other than his own during working hours
for 2 or 3 minutes at a time. Other employees also paid such visits,
and the practice had been going on long before the formation of the
Association or the Union. Atwood testified he saw Palmer absent
from his post as early as June, and admitted that Palmer was not
the only one who at times absented himself from his place of work.
It does not appear that any other employees were laid off or dis-
charged for this reason. We conclude that the respondent did not
lay off Palmer on November 5 because he at times absented himself
from his place of work.3'
Foreman Joyner testified that in selecting employees to be laid
off in the shipping department he considered ability, seniority, and
marital status. The record does not show whether Palmer was mar-
ried.
Palmer had over 6 months more seniority than James Craig, a
shipping-department employee who was retained on November 5.
Craig was employed in the receiving division of the shipping de-
partment. He also did packing, although he was not a regular
packer, and he likewise worked on the truck. Palmer, besides being
a packer, also did receiving work and worked on the truck. Craig
30 Cf N. L R. B v. American Potash and Chemical Corp, 98 F. ( 2d) 488 ( C. C. A 9).
31 Cf N L R B v Botany Worsted Lulls, Inc ., 106 F ( 2d) 263 (C. C. A. 3).
ANDREW JE'RGENS CO. OF CALIFORNIA 553
-replaced Palmer on the, truck about October 20, 1937. Joyner testi-
fied that Palmer was taken off the respondent's truck because he
spent 2 hours more than he should have on one trip to Los Angeles.
Palmer explained to him on that occasion that he had difficulty in
finding a parking space. Joyner admitted that he himself had had
parking difficulties when on a trip for the respondent in Los Angeles.
Palmer stated at the hearing that he thought that he had been
-taken off the truck because the respondent considered it would be
easier to lay him off if he were packing, since the lay-off of a packer
could be attributed more conveniently to a slackening of business.
The record does not show that Palmer was a less efficient employee
than Craig. .
The respondent introduced into evidence schedules similar to that
referred to in the case of Ed Young, covering the periods from
June 1 to June 18, October 1 to October 20, and from October 21
to November 5, 1937. Office Manager Meeker testified as to the
contents of the time slips of the packers during those periods. The
time slips purport to show the number of hours spent by each packer
in the packing and shipping department or on the truck during
those periods. During the period from June 1 to June 18 Palmer
spent 71/-,-8 hours less time in the shipping department than the
other packers. During the period from October 1 to October 20
he spent 28 hours less time in the shipping department than the
other packers. During the period from October 21 to November'
5, he spent 2 hours less time than the other packers in the shipping
department. The schedules compare the packing performances of
the packers in three respects. If accepted at face value they show
that Palmer, for the periods June 1 to June 18 and October 1 to
October 20, occupied third, fifth, and fifth places, respectively, as
to the three criteria of measurement. For the, period October 21
to November 5, he occupied third, third, and fifth places, respec-
tively. For this latter period, immediately preceding his lay-off,
the schedule shows that Palmer in less time packed more in terms
of weight and number of cartons than Ralph Smith, another packer,
although he packed fewer orders. Smith was retained on Novem-
ber 5. For the reasons stated above in the case of Ed Young, we
have no means of ascertaining whether the respondent would have
inferred from the schedules and the time slips, taken at face value,
that Palmer was the least efficient packer nor can the schedules be
taken at face value. Furthermore, the schedules upon which the
respondent relies now to justify its selection of Palmer for lay-off,
except the schedule for the period October 21 to November 5, were
,not prepared until after Palmer's lay-off. Finally the schedules
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only cover relatively short periods during 'Palmer's tenure of em-
ployment. We conclude that the schedules and time slips do not
prove that 'the respondent determined to lay off Palmer upon the
basis of efficiency.
Palmer was expressly named in the Rothenberg memorandum
in a context which plainly shows that Rothenberg planned to select
him for lay-off because of his affiliation with and activity in the
Union, and his opposition to the continued existence of the Asso-
ciation. This conclusion is reinforced by the remark of Foreman
Van Hove, as noted above, on December 6 to Helen Rogers that
lay-offs were occurring because Palmer and Blackmon had not "let
the Association go just like they. had started to" and that Palmer
and'Blackmon would probably lose their jobs.
We find that the respondent laid off Ralph Palmer on November
5, 1937, and has since failed and refused to reinstate him because
of his affiliation with and activity in the Union, and his opposition
to the Association and the Independent.
At the time of his lay-off Palmern arned $23 to $27 weekly, de-
pending on whether or not he worked on Saturday. He has,since
had several days of Christmas work, at which he earned $42.04.
He desires reinstatement to his former position.
(3) Cosmetics department
On November 5, 1937, the respondent laid off two employees in
the cosmetics department, Suzanne Adams and Katherine Hayes,
and replaced them by two other employees, Florence Lapask and
Emma Rogers who were transferred from the soap department.
The following portion of the Rothenberg memorandum will be re-
called in this connection. "We'll move 2 of the girls from the Soap
Department up to the Cream 32 Department and lay off 2 girls there
(Both agitators). By this move we hope to have a clean slate . . .
We are hoping to lick this A. F. L. gang . . ." We find that Adams
and Hayes are the "agitators" replaced by Lapask and Rogers.
Suzanne Adams was hired in the powder department on January
27, 1937, at $12 a week. She was laid off on November 5, 1937, at
which time she earned $17 a week. She has not been reinstated,
although she applied for reinstatement in December 1937.
At the October 4 meeting of the Association, during debate over
the resolution requesting increased minimum rates of pay, Adams
challenged Braunsdorf's remark that the respondent had been fair in
avoiding lay-offs, and stated that the respondent did lay off em-
ployees when work was slack and that she had been laid off. Odle,
her forelady, objected to her statements in favor of the resolution
"Cream department" and "cosmetics department" were often used interchangeably.
ANDREW JE'RGENS Co. OF CALIFORNIA 555
and stated that she, Odle, knew her girls were satisfied with the
wages they received. Odle -denied .that this incident had anything
to do with Adams' lay-off. In view of the Rothenberg memorandum
we do not believe her denial.
Adams affiliated with the Union on October 26. About November
1 she was solicited to sign the Independent petition by Marion
Cameron. She refused to sign the petition.
On November 5 Adams was laid off and was replaced by Florence
Lapask who was transferred to the powder department from the
soap department. Lapask was not affiliated with the Union at
this time.33 Forelady Odle testified that Adams was not reinstated
because she was inefficient and "half asleep most of the time"; that
Lapask proved more efficient; and that Odle and Forelady Santella
decided that Adams was one of the slowest employees. In view of
the Rothenberg memorandum we do' not credit this testimony.
We-find that the respondent laid off Suzanne Adams on Novem-
ber 5, 1937, and thereafter failed and refused to reinstate her because
of her affiliation with the Union and *her refusal to join the-Inde-
pendent. After November 5, Adams obtained temporary work, at
which she earned $16. She desires reinstatement to her former
position.
Katherine Hayes was hired on -September 9, 1937, in the cream
department. She was laid off on November 5, 1937. She has not
been reinstated, although in November after her lay-off she applied
for reinstatement.
On November 1 she affiliated with the Union and in or about the
first part of November attended a meeting of the Union.
On November 5 Hayes was laid off and replaced by E. Rogers
who was transferred from the soap department to the- cream depart-
ment. E. Rogers was not affiliated with the Union.
Forelady Santella testified that Hayes was laid off because she
was not very efficient, did not watch her work very closely, and that
E. Rogers was "a good little worker up there." However, Hayes
received no complaints about her work. In view of the Rothenberg
memorandum, we do not credit Santella's testimony. We find that
the respondent laid off Katherine Hayes on November 5, 1937, -and
thereafter failed and refused to reinstate her because of her affiliation
with the Union.
At the time of her lay=off Hayes earned $16 a week. Thereafter
she obtained temporary work for 5 weeks !and earned $16 a week.
She desires reinstatement to her former position.
& Subsequently , on November 23, Lapask applied 'for , membership ' in the Union.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The lay-off of Grace Louise Bruce from the cream department
on November 12, 1937
Grace Louise Bruce'-was hired by the respondent on September
10, 1937. The respondent informed her at that time that her em-
ployment might not be steady. Bruce was laid off from the cream -
department on November 12, 1937, and told that she would be re-
called when needed. No other cream-department employees were
released at this time. The respondent reinstated Bruce on January
13, 1938.,
Bruce applied for membership in the Union and refused to sign
the petition for the Independent. She attended no meetings of the
Union and engaged in no other union activity.
Production in the cream department slackened during November.
Upon her lay-off Bruce had the least seniority in the department
and it does not, appear that she was more efficient than other
employees.
We find that the record does not support the allegations of the
complaint that the respondent discriminated in regard to the hire
and tenure of employment of Grace Louise Bruce because she ioined
and assisted the Union.
d. Lay-offs from the cosmetics department on November 24, 1937;
delayed reinstatements and refusals to reinstate thereafter
(1) Cream department
On November 24, 1937, the respondent laid off 20 employees in the
cream department. At this time 24 employees were working in that
department.' Fourteen of these employees were affiliated with the
Union. All 14 were laid off. Ten employees were not affiliated with
the Union. Six of these employees were laid off. The complaint
alleges that the. respondent discriminated ^ in regard to the hire and
tenure of employment of 10 of the 14 employees affiliated with the
Union. As noted above, production slackened in the cream depart-
ment in November. Forelady Santella noted the names and tele-
phone numbers of the employees laid off and informed them that
inventory was being taken and that they would be recalled.
Leslie Clcatfeld was hired on January 26, 1937. He was laid off
from -the cream department on November 24, and not reinstated
thereafter. He applied for membership in the Union at the close
of the October 25 meeting of the Association. On the following day
84 This number includes E. Rogers who was transfeired'from the soap to the cream depart-
ment on November 5, and Marie Worcester , who appears on the pay roll under the powder
department but who in fact was working in the cream department on November 24.
.ANDREW JERGENS CO. OF CALIFORNIA ' ' 557
his foreman, Stephano,- who had also attended the meeting the day
before, stated to him that "it would go hard with those" who joined
the Union. Thereafter Chatfield refused to sign the Independent
petition and wore his union button in the plant.
Upon' his lay-off Chatfield had the least seniority of the male
employees in his department and it does not appear that ,he was
more efficient than other employees.
E. H. Stolle, the only other male employee laid off in the cream
department on November 24, also affiliated with the Union at the
October 25 meeting, and spoke in favor of an affiliated organization.
Stolle joined the Independent on November 29 or 30 and was rein-
stated on November 30. However, Stolle, to whom Chatfield was
next in seniority, had approximately 1 year's seniority over Chat-
field. Stephano testified that Stolle was more efficient than Chatfield.
We find that the record does not support the allegation of the
complaint that the respondent discriminated in regard to the hire
and tenure of employment of Chatfield because he joined and assisted
the Union.
Lulu Johnson, Velma Rainwater, Helen Rogers, and Nancy Wil-
liams were among those laid off from the cream department on No-
vember 24. Williams and Rogers were reinstated on December 6;
Rainwater and Johnson on December 13.
These four employees applied for membership in the Union. At
least two of them, Rogers and Johnson, refused to sign the Independ-
ent petition.
Upon or during their lay-off, these four employees had no greater
seniority or apparent efficiency than non-union employees retained
in or reinstated to comparable positions on or after November 24.
We find that the record does not support the allegations of the
complaint that the respondent discriminated in regard to the hire
and tenure of employment of Johnson, Rainwater, Rogers, and
Williams because they joined and assisted the Union.
Marie Worcester was hired in January 1934. She was laid off
from the cream department on November 24, 1937, and reinstated on
January 18, 1938.
Worcester appears on the respondent's pay roll under the powder
department, but the forelady of that department did not consider
her to be a member thereof. It appears that Worcester was a general
utility girl and worked throughout the plant.
Worcester became affiliated with the Union on October 25, and
thereafter attended all meetings of the Union. She refused to sign
the Independent petition about November 1.
When she was laid off on November 24 Forelady Santella told
her that inventory would be taken, that the'lay-off might last 3 days
558 DECISIONS OF NATIONAL LABOR "RE'L'ATIONS' BOARD'
or a week, and that she would call her. Worcester applied for iein-
statenient before Christmas, after she had discovered that other
employees had returned to work. Santella told her on this occasion
that only a few girls were working. As noted above Worcester was
not recalled until January 18.
Five cream-department employees having less seniority than
Worcester were reinstated before her. These employees were June
Baughman, Genevieve Calvert, and Winifred Sackett, each reinstated
on December 13, 1937; Vera Waid, reinstated on December 14, 1937;'
and Marie Trimble, reinstated on January 13, 1938. Baughman,
Calvert, and Sackett were never affiliated with the Union. Each, at
some time, joined the Independent, Baughman joined the Independ-
ent-in November 1937. Waid signed an application card for member-
ship in the Union on October 30, but withdrew the following day, and
-later joined the Independent. Trimble applied for membership in
the Union but later withdrew and joined the Independent before her
reinstatement.
After November 24 the cream-department employees who were
reinstated handled the work of both the cream and the powder de-
partments. Forel"adies Santella• and Odle testified that selection for
reinstatement was based on efficiency throughout the cream and- pow-
der department. It is therefore significant that Worcester had worked
in both departments. On the other hand, Odle testified that
Trimble' never worked in the powder department. As for Calvert,
Odle could not say definitely whether or not she had ever worked in
the powder department prior to November 24, and testified, but I
imagine she has; most of the cream girls have." Odle admitted' that
she would have remembered if Calvert had worked in that department
for any period' of ti-me.. As for Baughman, Odle was not certain
but "imagined" she did work in that department before November
24. Campbell, employee in the- powder department, testified that
Baughman and Calvert never worked in that department prior to
November-24. We find that Baughman and Calvert had not worked
in the powder department prior to November 24. These two em-
ployees were brought into that department after their- reinstatement,
and there is evidence that Baughman, because of her inexperience,
retarded the operation of boxing there.
Forelady Odle admitted that Worcester's work its a service girl
in the powder department was satisfactory. On one occasion Odle
told Worcester that she was the best service girl the respondent had.
Odle testified that Worcester was not efficient on the belt in the pow-
der department, since she was a nervous person, and that Oclle had
received several complaints that Worcester had been "bossy" with
other employees. Worcester, however, had received no complaints
ANDREW JERGENS Co. OF CALIFORNIA
0
559'
about her work. Upon this record and in view of Worcester's tenure
of employment since January 1934, we do not credit Odle's testimony
regarding Worcester's deficiencies as an employee in the powder
department, insofar as this testimony purports to establish a reason
for the delay in reinstating Worcester.
There is no evidence 'that Worcester could not perform the work
done in either cream or powder department by any of the five non-
union cream-department employees who were reinstated before her.
Although Santella testified that Baughman was an "exceptionally'
good" employee and that Calvert was a "very good worker," and
Odle testified that Waid was " an all around girl," there is no evi-
dence that Worcester was less efficient in either the cream or powder
departments, than Baughman, Calvert, Waid, Sackett or Trimble.
Under, the circumstances 'set forth above, including the prior re-
instatement of the above five non-union employees, we find that the
respondent delayed the reinstatement of Worcester from December
13, 1937, to January 18, 1938, because of her affiliation with the
Union, and her refusal to join the Independent.
During her lay-off, Worcester had no other employment.
June Brown was hired on October 6, 1936, at $9 a week. She was
laid off from the cream department on November 21, 1937, when she
was earning $17 a week. She has not been reinstated.
Brown affiliated with the Uiiion on November 2, and thereafter be-
came its recording secretary. About November 1 she refused to sign
the, Independent petition.
Forelady Santella told her on November 24 that the employees
would be off 2 or 3 day's while inventory was taken and that they
would probably be called back Tuesday or- Wednesday of the follow-
ing week. Brown was never recalled although she applied twice for
reinstatement. On the first occasion, shortly after Christmas, San-
tella told her she had no idea when the employees would be recalled
but that Brown was next in line to be recalled. A week or two later
Santella informed her that she needed no other employees.
Four cream-department employees having less seniority than
Brown were reinstated. These are Baughman, Calvert, Waid, and
Trimble. The facts. with respect to them set forth in connection
with Worcester's case are also relevant to Brown's case.
Santella testified generally that Brown was not reinstated because
she was temperamental and would express her dislike upon being
asked to do what she did not like to do. Brown received no com-
plaints about her work. In fact, she received compliments regard-
ing her work from Forelady Santella, Assistant Superintendent At-
wood, and Foreman Stephano. Under these circumstances we do not
credit Santella's testimony as establishing a reason for the refusal
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to reinstate Brown. Although Santella' testified that Baughman
was an "exceptionally good" employee, and that Calvert was a "very
good worker," there is no evidence that Brown was less efficient than
or could not perform the work of Baughman, Calvert, Trimble, or
Waid.
Under the circumstances set forth above, including the prior re-
instatement of the above four non-union employees, we find that the
respondent, on and after December 13, 1937, failed and refused to re-
instate Brown because of her affiliation with and activity in the
Union, and her refusal to join the Independent.
Since her lay-off, Brown has had no other employment. She
desires reinstatement to her former position.
Clenwntine Bayless was hired in the powder department on Feb-
ruary 6, 1937, at $12 a week. She was laid off from the cream de-
partment on November 24, 1937, when she earned $17 a -week. She
was reinstated on January 13, 1938.
She affiliated with the Union on October 28, 1937, and about No-
vember 1 she refused to sign the Independent petition. As noted
above, between October 28 and November 5 Santella stated to Bay-
less that the respondent would shut its plant as a result of organi-
zation by the Union. -
When Bayless was laid off on November 24, Santella told her that
inventory would be taken, that Bayless would be laid off for 2 or 3
days, and that Santella was quite sure that the employees would be
recalled the following Tuesday or Wednesday. Bayless was not
recalled until January 13.
Three cream-department employees over whom Bayless had senior-
ity, were reinstated before her. These employees are Baughman,
Calvert, and Waid. The facts with respect to them set forth above
in connection with Worcester's case are also relevant to Bayless'
case.
Bayless had worked in the powder department prior to November
24, whereas, as noted, Baughman and Calvert had not. Santella
admitted that Bayless was a "good worker." On one occasion San-
tella told her when she was sent to the powder department that " if
[she] picked that up as easily as [she] had filling in the cream
machine [she] would do just fine." On another occasion Odle told
Bayless that she was efficient. Although Santella testified that
Baughman was an "exceptionally good" employee, and that Calvert
was "a very good worker," she did not expressly compare the relative
merits of Bayless, Baughman, and Calvert. Upon the basis of the
record before us, and in view of the vagueness of Santella's testimony
in-this regard, we do not credit her testimony in so far as it by im-
plication purports to establish that Baughman and Calvert were
ANDREW JE'RGEIViS CO. OF CALIFORNIA 561
more efficient than Bayless. Although Odle testified that Waid was
reinstated, because she was "an all around girl" there is no evidence
that Bayless was less efficient than Waid. ,
Under the circumstances set forth above, including the prior re-
instatement of Baughman, Calvert, and Waid, we find that the re-
spondent delayed the reinstatement of Bayless from December 13,
1937, to January 13, 1938, because of her affiliation with the Union,
and her refusal to affiliate with the Independent.
Dorothy Holmes was hired on January 27, 1937, at $12 a week.
She was laid off on November 24, 1937, when she earned $15 a week.
She has not been reinstated.
She..a'pplied for membership in the Union on November 3, 1937,
and- thereafter attended two of its meetings. About November 1 she
refused to sign the Independent petition.
When Holmes was laid off on November 24, Santella told her that
the employees would be off for a few days, that she doubted whether
it would be any longer than that, and that she would call Holmes
back. Two weeks later Holmes applied for reinstatement and San-
tella stated she did not have the slightest idea when she would recall
Holmes.
. Although Holmes was not reinstated, four cream-department em-
ployees with less seniority, namely, Baughman, Calvert, Waid, and
Trimble were reinstated. The, facts with respect to these employees
set forth in Worcester's case are also relevant here.
Holmes received no complaints about her work during the course
of her employment. Although Santella testified, as noted above, in
regard to the efficiency of Baughman and Calvert, and Odle testified
that Waid was reinstated because she was' "an all around girl" and
could work in both cream and powder departments, there is no evi-
dence that Holmes was less efficient than, or could not perform the
work done by,' Baughman, Calvert, Trimble, or Waid.
Under the circumstances set forth above, including the prior re-
instatement of Baughman, Calvert, Trimble, and Waid, we find that
the respondent failed and refused to reinstate Dorothy Holmes on
and after December 13; 1937, because of her affiliation with the Union,
and her refusal to affiliate with the Independent.
The record does not disclose whether Holmes has secured other
employment. She desires reinstatement to her former position.
Virginia Reid was hired on January 27, 1937, at $12 a week.. She
was laid off. from. the cream department on November 24, 1937, when
she.earned $15 a week. She has not been reinstated.
She "affiliated with the Union on October 27. About November 1
she refused to sign the Independent petition.
323428-42-vo1 27-37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Reid was, laid off on November 24, Santella told her that she
would be off for a few days because inventory would be taken, and
that she would call her.
- Reid was never recalled, although four cream-department em-
ployees having less seniority than Reid, namely, Baughman, Calvert;
Waid, and Trimble, were reinstated. The facts with regard to these
employees have already been set forth and are relevant here.
Reid had done some work in the powder department. As noted
above, Baughman and Calvert had not worked in the powder de-
partment before November 24, were brought into that department
after their reinstatement, and Baughman 'retarded the operation of
boxing there. Reid received no complaints about her work.* She
received compliments about it from' Foreladies Santella and Odle.
Santella admitted that Reid' `.`worked out all right, but she is not
the best one" and testified that she_ was nervous. and not as^ fast 'as,
"some of the other girls"; that there was no comparison between
Reid and Baughman, who was an "exceptionally good" worker;
"picks on anything quick . . . watches her work close and does not
get nervous"; that Trimble, among other things, worked on the cap-
per, and was good on the capper, that Reid had never worked on,the
capper, that she did not think Reid' would be good on it, and that
training .was required to work on the capper. However, although
Odle testified that Waid was reinstated because she was "an all
around girl" and could work in both cream and powder ' depart-
ments, and Santella; testified that Calvert was a "very good worker,"
there is no evidence that Reid was less efficient than, or could, not
perform the work done by, either Calvert or Waid.
Under these circumstances; including the prior reinstatement of
Calvert and Waid, we find' that the respondent,, on and after De-
cember 13, 1937, failed and refused'to reinstate Reid because of her
affiliation with.the'Union, and her refusal to• join the Independent.
Since her lay=off, Reid has not had other employment. She
desires reinstatement to her former position.
(2) Powder department
Vera Campbell, Helen Dobbins, Jane Lansing, and Ruth Newman
were laid off in the powder department on November 24, and were
not reinstated. They, together with Lapask and Millie Watson,
whose' cases are discussed below, comprised all the women employees
working in the powder department on November 24: All powder-
department employees were affiliated with the Union. Dobbins,
Lansing, and Newman refused to sign the Independent petition.
Newman informed Forelady Odle prior to her lay-off that she was
- ANDREW JERGENS CO,. OF CALIFORNIA 563
a member of the Union. Campbell was questioned by Forelady Odle
regarding her membership and told that she would 'be receiving less
money a month after she had been a member.
The record shows that the powder department was -in operation
between 40 and 60 per "cent less time in November, December, and
January than it was in-October.
- Watson, powder-machine operator, was not laid off. Watson,
however, was also affiliated with the Union. She had seniority over
the other employees, and it appears that she was the most efficient
employee in the department. Lapask, who had been transferred
from the soap to the powder department to replace Adams; whose
case is discussed above, was laid off on November 24 and reinstated
December 3. However, La,pa'sk had seniority over the tither em-
ployees in the powder department, and it does not appear that any
of them was more efficient than she was. She signed an application
for -membership in the Union the day before she was laid off.
Campbell, Dobbins, Lansing,, and Newman each' had at times
worked'in the cram as well as the powder department and each had
seniority: over cream-department employees Baughman, Calvert,
Trimble, and Waicl, who' were reinstated. The facts with regard
to the latter employees have already been noted above and are rele-
vant here. I -
Santel]a and Odle testified, in -substance, that reinstatement of
employees in the' cream and powder departments was based on effi-
ciency throughout both departments; that ,the powder-department
girls, were efficient only in the 'powder department, whereas the cream
employees were more efficient throughout both departments; that it
had been the respondent's practice for some time to use cream-de-
partment employees in the powder department when there was not
a full week's work in the cream department; and that the powder-
department employees were not reinstated because there were enough
employees in the cream • department who could handle the work of
both departments.
With respect-to the specific powder and cream employees here in
question, Odle testified that Newman's health interfered with her
work, and that Baughman was more efficient that Newman'in per-
forming the latter's operations in the powder department. Santella
testified that Waid was a much faster wrapper than Newman. It
does not appear that the respondent ever in the past refused Newman
employment because of her health. As noted above, Baughman had
not worked in the powder department prior to November 24, and
thereafter retarded the operation of boxing there. Odle testified
further that Calvert was as good as or better than Lansing on work
in the powder department.. As noted above, however, Calvert had
564 DECISIONS ' OF NATIONAL LABOR - RELATIONS BOARD
not worked in that department prior to November 24. Odle also
testified that other employees in the cream department could do
Dobbins' work in the powder department ag well as she. However,
Odle did not name any of such employees, and admitted that Dob-
bins was a very good boxer. Odle also testified that Campbell was
overbearing and uncongenial with other employees.
Except as stated above, there is no evidence regarding the com-
parative merits in the cream and powder departments of powder
employees Campbell, Dobbins, Lansing, and Newman on the one
band, and cream employees Baughman, Calvert, Trimble, and Waid
on the other. In view of the fact that Campbell, Dobbins, Lansing,
and Newman each had worked in both cream and powder depart-
ments before "November 24; whereas Trimble, Calvert, and Baugh-
man had not, and in view of the other circumstances disclosed by the
record, we do not credit the testimony of Santella and Odle as
establishing the real reason for the refusal to reinstate Campbell,
Dobbins, Lansing, and Newman.
In our proposed findings we proposed to dismiss the cases of Camp-
bell, Dobbins, Lansing, and Newman. The Union has taken ex=
ception to this portion of the proposed findings. We are of the
opinion that the Union's exceptions are well taken.
Under the circumstances set forth above, including the reinstate-
ment of Baughman, Calvert, Trimble, and Waid, we find that'the
respondent failed and refused to reinstate Vera Campbell on and
after December 13, 1937, because of her affiliation with the Union,
and Helen Dobbins, Jane Lansing, and Ruth Newman-on and after
December 13, 1937, because of their affiliation with the Union and
their refusal to joint the Independent.
e. Lay-offs from the shipping department between November 19 and
December 1, 1937
J. R. Craig, Harold Gratias ,3 u Ralph Smith, Joseph Mulleda and
Norman Heywood. On November 19 the shipping department em-
ployed' 10 employees . Five were members of the Union, five were
not. Between November-19 and December 1 the five union members
were laid off , and the five non-union members were retained. The
five union members thus laid off are charging employees. Three of
the five-Smith, Mulleda and -Heywood-have been reinstated.
Craig and Gratias have not been reinstated.
At the October 25 meeting of the Association , Craig spoke in favor
of an affiliated organization . Smith and Heywood refused to sign
ss Gratias appeared on the pay roll under the soap department. He was transferred to
the shipping department about October 20, whether temporarily or permanently does not
appear . He was working in the shipping department when laid off.
ANDREW, JERGENS CO. OF CALIFORNIA 565
the Independent petition. Prior to his lay-off Cordery informed
Smith that it would be better if he signed the Independent petition.
Heywood was told by Lee Heerman, maintenance employee who
solicited him to sign\the petition, that it was his last chance. , Mul-
leda first wore his union button in the plant a week or two prior
to his lay-off. -
The record shows that shipments of the respondent's products de-
creased in November and December.33
Joyner testified that his selections for lay-off were based on effi-
ciency and seniority, among other things. The charging employees
had less seniority than the employees retained in the department and
it does not appear that they were more efficient than those retained.
We find that the record does not sustain the allegations of the
complaint that the respondent discriminated in regard to the hire
and tenure of employment of Craig, Gratias, Smith, Mulleda, and
Heywood for the reason that they joined and assisted the Union.
f. Lay-offs from the soap department in January 1938
(1) January 5, 1938
On January 5, 1938, the Woodbui y plodder in the soap depart-
ment was rendered inoperative by the burning out of a switchbox.
The respondent thereupon laid off six employees who had been dis-
criminatorily laid off from the soap department in November 1937,
then reinstated.
Blackmon. After his reinstatement on November 22, Blackmon
wore his union button in the plant. As noted above, on or about
December 6 Foreman Van Hove questioned Helen Rogers about her
membership in the Union, made disparaging remarks about unions
in general, stated that lay-offs were occurring because Palmer and
Blackmon had not "let the Association go just like they had started
to" and added that Palmer and Blackmon would probably lose their
jobs.
Blackmon was laid off on January 5, was reinstated on January
7, was again laid off on that date, and was called back to work on
January 12. He did not return, however, until January 18.'7
Blackmon was laid off on the dates in question although Nevins,
with less seniority, who joined the Independent prior to January 5,
was retained. The record shows a considerable amount of inter-
31 It appears that a new employee, Gasser , was employed in the shipping department
about January 1, 1938 There is uncontroverted testimony , however , that he was hired
as a prospective salesman.
sr Blackmon was again laid off on January 26, 1938. There is no evidence that-this
lay-off was discriminatory . We find below that Blackmon was discriminatorily discharged
on January 29, 1938.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changeability among employees engaged in various types of work
in each department in'the plant. As noted above Blackmon had in
the past performed or could perform the work done by Nevins, and
there is no evidence that Blackmon was less efficient than Nevins.
Fields. After her reinstatement on November 22, 1937, Fields was
again laid off on January 5, and reinstated on January 17, 1938.
- At the time of the January 5 lay-off,-Fields was working on a
press which received soap from the Woodbury plodder, and was laid
off with other employees similarly engaged. However, Fields had
done other work in the past when the Woodbury press was out of
order or when there was no work to be done on it.
Two soap-department employees, Jean Mills and Leona Phoenix,
-with less seniority than Fields, were not laid off on January 5. Phoenix
worked on the Woodbury wrapping machine. Although Mills was
the operator of such a machine, she did not operate it during January,
being engaged during that month, among other things, in racking soap
on the pin press. Fields operated presses and picked up soap; she had
never worked on the Woodbury wrapper but had in the past done the
work Mills was doing in January and could do such work. As noted
above, the record shows a considerable amount of interchangeability
among employees engaged in various types of work in each department
of the plant. There is no evidence that Fields could not perform the
work of Phdenix. There is no evidence that Fields was less efficient
than Mills or Phoenix.
Phoenix was never affiliated with the Union and joined the Inde-
pendent at a meeting of that organization on January 3. Mills signed
an application for membership in the Union on November 3, 1937,38 but
joined the Independent during the week of January 3, 1938, and testi-
fied at the hearing that she did not desire representation by the Union.
- Gibble represented the Union at a conference between the re-
spondent and the Union on November 11. After her reinstatement on
December 15, Gribble wore her union button in the plant. At the time
of the January 5 lay-off, Gribble worked on a press which received
soap from the Woodbury plodder. She was reinstated on January 17.
Mills and Phoenix each had less seniority, than Gribble and were
not shown to be more efficient than she. - Gribble had worked on
the wrapping - machine and had done boxing. It does not appear
that Gribble could not perform the work done by Mills and Phoenix in
January. Gribble had worked in the past -on many occasions when
Mills and Phoenix had been laid off. Other facts in respect to Mills
and Phoenix have been recited above and are also relevant in connec-
tion with Gribble's case.
As noted above , Mills was discriminatorily laid off on November 5 and 16, and rein=
stated on November 15 and 23
ANDREW JERG'ETTS CO. OF CALIFORNIA 567
Murphy. After his reinstatement on December 1, Murphy engaged
in an argument with Foreman Farral as to whether or not Eddington,
who was laid off at the time, should be occupying Murphy's position.
'During the course of the conversation, Farral called Murphy an
"agitator."
At the time of the January 5 lay-off, Murphy was operating the
Woodbury plodder. He was reinstated on January 17 when the plod-
der began to operate again. Nevins, who had joined the Independent,
and who had less seniority than Murphy, was not laid off on January 5.
As noted above, Murphy could do the work done by Nevins, and we do
not credit Farral's testimony that Murphy was less efficient on the
pin, press plodder than Nevins.
During his lay-offs in November 1937 and January 1938 Murphy
had no other employment.
Rhoads. After her' reinstatement on November 22, Rhoads was
engaged in picking up soap from presses, which received it from the
Woodbury plodder, or in boxing soap. She was laid off on January 5,
1938, and was reinstated on January 17, 1938.
Rhoads had seniority over Mills and Phoenix, whom we have
already discussed above. Rhoads had in the past performed and could
perform the work done by Mills and Phoenix in January. , There is
no evidence that Rhoads was less efficient than either Mills or
Phoenix: ' '
G. Campbell, the sixth employee laid off from the soap department
on January 5, had the least seniority among employees in that
department.
In view of the previous discriminatory lay-off of Blackmon, Fields,
Gribble, Murphy, and Rhoads, their continued adherence to the
-Union and the respondent's continued hostility to it, the interchange-
ability of employees in the soap department, and the unexplained
preference over these five union sympathizers of. adherents of the
Independent having less seniority, we find that the respondent con-
tinued to discourage membership in the Union and encourage mem-
bership in the Independent by discriminatorily laying off Blackmon,
Fields, Gribble, Murphy, and Rhoads on January 5, and Blackmon
on January 7, 1938. Since Campbell had the least seniority, we
do not find that his lay-off on January 5 was discriminatory.
(2) January 11, 1938
Pillow, as found above, had been discriminatorily laid off from the
soap department in November 1937. She was reinstated on Decem-
ber 16, 1937, laid off on January 11, and reinstated on January 14,
1938. Mills, whom we have discussed above, was retained on Jan-
uary 11,-although she had less seniority than Pillow and was not
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shown to be more efficient. It does not appear that Pillow could
not perform the work being done by Mills in January.
Under these circumstances, we find that the respondent discrimi-
natorily'selected Pillow for lay-off on January 11, because of her
continued adherence to the Union.
(3) January 26, 1938
On January 26, 1938, during the hearing in the-instant proceed-
ing, the respondent again laid off six of the employees who had-been
discriminated against in November 1937 and earlier in January
1938. Forelady Eckland informed them that the lay-off was due
to the fact that a number of employees were attending the hearing.
Blackmon, G. Campbell, Fields, and Rhoads were laid off for Jan-
uary 27 and 28, Dribble for January 28,39 and Pillow , for January
27, 28, and 31.
Since it does not appear that employees with less seniority than
Blackmon or G. Campbell were retained for January 27 and 28, we
do not find that their lay-offs during this period were discriminatory.
However, Mills, with less eniority than the other four employees, was
retained. From the facts which we have already set forth, we find
that by her retention in preference to Fields, Rhoads, Gribble, and
Pillow during this period, the respondent discriminated against
them, discouraging membership in the Union and encouraging mem-
bership in the Independent. Fields and Gribble had no other em-
ployment during their lay-offs in November and January.
(4) January 27, 1938
Van Holm. We have found above that the respondent discrimi-
natorily laid off Van Holm in November, then reinstated her. The
respondent laid her off again on January 27.
Forelady Eckland told her that employees were being laid off
because there was no work for them to do, and that the lay-off was
temporary. Van Holm testified on January 31. The record does
not reveal whether or not she has been reinstated.
Mills, who was retained, had less seniority than Van Holm. Van
Holm could do the work Mills was engaged in during January.
There is no evidence that Van Holm was less efficient than Mills.
Under the circumstances set forth above, including the retention
of Mills, we find that Van-Holm was, again laid off on January 27,
1938, because of her affiliation with the Union.
'89 She had already asked for leave to attend the hearing on January 27
ANTDREW JEIRGENS CO. OF CALFEORMA 569 -
(5) January 31, 1938
Watkinson, as found above, was discriminatorily laid off in No-
vember, 1937. She was reinstated on November 22. Watkinson
was laid off for January 31.
Mills, who. was retained, had less seniority than Watkinson.
Arnold, who was also retained also had less seniority than Watkin-
son. Arnold had applied for membership in the Union on October
30, 193740 but had joined the Independent in the first part of Jan-
uary 1938, and testified at the hearing on January 13 that she did
not desire representation by the Union. Watkinson was experienced
in almost all types of work in the soap department. In previous
years during slack periods Watkinson and other senior employees
were not laid off but were put to work on presses, and junior em-
ployees were laid off; whereas on January 31, Mills and Arnold,
employees junior to Watkinson, were placed on presses and Watkin-
son was laid off for that day. There is no evidence that Watkinson
was less efficient than either Mills or Arnold.
Under the circumstances above set forth, including the retention
of Mills and Arnold, we find that Watkinson was again laid off for
January 31, 1938, because of her affiliation with the Union.
During her lay-off s in November and January, Watkinson had no
other employment.
3. The discharge of Blackmon on January 29, 1938
We have noted above that the respondent discriminatorily laid
off Blackmon on November 5, 1937, and again on January 5 and 7,
1938. Blackmon was recalled on January 12 and returned to work
on January 18. He was laid off on January,26 and testified at'the
hearing on January 27. The respondent discharged him on January
29, when he came to the plant to collect his pay, allegedly because he
falsified his employment application and because he had a criminal
record.
About December 15, -1937, a new set of rules were posted in the
plant. These rules set forth, for the first time, among other causes
for discharge, violation of any criminal law, and falsification of
application for employment.
On January 27, 1938, when Blackmon was testifying at the hear-
ing, counsel for the respondent informed Office Manager Meeker that
lie had a "hunch" that Blackmon had a criminal record, and that he
could impeach Blackmon's testimony with such a record. Meeker
40 We have found above that Arnold was discriminatorily laid off on November 5, and
reinstated on November 22
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereupon requested General Manager Rothenberg to obtain the
requisite information. Rothenberg proceeded to the police station at
Burbank and received information there that Blackmon had been
charged with breaking and entering in Hamtramck, Michigan, in
July 1933, that the charge had -been reduced to loitering, and that
Blackmon had been sentenced to a 90-day. term in the Detroit House
of Correction; that he,had been. arrested in June 1934, in Beverly
Hills, California, on' a, charge of vagrancy ;41 and- that he had been
arrested for drunkenness in Burbank in 1935.
Upon the basis of this information Rothenberg, according to his
testimony, concluded that Blackmon had falsified his employment
application by noting thereon that he had lived -in Burbank from
1932 to 1933,42 and decided to discharge him because of such alleged
falsification and because of his criminal record. The information
supplied by the Burbank police station clearly did not support
Rothenberg's asserted conclusion that Blackmon had falsified his
employment application. For aught that Rothenberg knew, although
Blackmon had spent-90 days in a Michigan jail during. 1933, he might
still truthfully have, represented that he lived in Burbank from 1932
to 1933. Rothenberg made no further inquiry into the truthfulness
of this representation. He admitted that the application form did
not request information concerning past imprisonment. Under these
circumstances we do not credit Rothenberg's claim' that he concluded
that Blackmon had falsified his employment application.
On January 29 Meeker, in the presence of Geneau, asked Blackmon
if the information which the respondent had, concerning his criminal
record, was true. Blackmon stated that the charge of breaking and
entering was not, but admitted he had served a term in- the House
of Correction. Meeker called Blackmon's attention to the respond-
ent's rules regarding discharge for violation of criminal law and fur-
ther called his attention to the fact that he had failed to mention
the jail sentence or the time spent in Michigan in his application
41 The Beverly hills Police Department informed counsel for the Board by letter dated
February 23, 1938, that Blackmon's name was not in its files. Blackmon denied that he
was arrested for vagrancy but testified that•he*spent a night in jail at Beverly Hills on his
own request, since he had not sufficient funds for a lodging
42 The precise information appearing on the employment application, dated August 1, 1934, upon which
the respondent relies, is the following In answer to the question "How long have you lived in Burbank?"
Blackmon answered "2 years " Under "Record of Previous Experience" Blackmon stated in part as
follows
From To Name of employer Address Nature of work Reason forleaving
1931 1932 Part time "Cooking" _________ Long Beach ___ Cooking_ ______ Quit.
1932 1933 Odd jobs & Cooking__________ Burbank______ Cooking_______ No more work
1933 1934 Odd jobs- -------------------- Burbank ______ Gen Work____
AN'DRE'W JERG'ENSI CO. OF CALIFORNIA- 571
blank and informed him he was discharged. ` Meeker testified as
follows in this connection : "I did tell him that if he had made known,
this record' that that would have been an entirely different matter,
that it wasn't so much-I don't know as I told him -just this way-
it wasn't so much the fact that we had just-that he had this record,
as it was that he had not made it known, and that he had made state-,
ments on his application blank which were not true." Thus Meeker
allegedly attributed the discharge primarily, not to Blackmon's crim-
inal 'record, but to his failure to disclose this fact when he applied
for employment. ' The application blank did not call for-such in-
formation, and after the posting of the rules on December 15 the
respondent did 'not require employees to report if they had any
previous criminal record. No employees other than Blackmon were
investigated.
Although Rothenberg and Meeker denied having 'knowledge of
the criminal record , prior to January 27, and Meeker testified that
he -had ascertained before discharging Blackmon that no representa-
tive of the management had such knowledge, Blackmon's jail sen-
tence was the subject of "common gossip" in the plant; employees in
the shipping department, including Bryan, used to engage in banter
with him regarding it; and' the "hunch" of respondent's counsel- as to
Blackmon's criminal record remains unexplained by 'the respondent:
- Since Rothenberg did not claim that he would have discharged
Blackmon because of his criminal conviction alone, since Meeker's
above-mentioned testimony indicates that Meeker purportedly would
not have discharged Blackmon because of a criminal conviction alone,
since the respondent did not establish its rule with respect to, dis-
charge for violations of the criminal law until long after Blackmon's
conviction, and since his jail sentence was common knowledge among
employees at the plant, we find that the respondent did not discharge
Blackmon because he' had been convicted on the charge of loitering
in 11933. Furthermore, we have found that the respondent did not
in fact believe that his application had been falsified. Moreover,
we do not credit the respondent's claim that it discharged Blackmon
for his failure to reveal his conviction because it does, not appear
that the respondent required any such disclosures of its employees.
In view of the respondent's past acts of discrimination against Black-
mon, his prominent union activity, the -respondent's anti-union cam-
paign, and Foreman Van Hove's statement to Helen Rogers about
December 6, 1937, noted above, that "Palmer and Blackmon would
probably lose their jobs," we find that the respondent discharged
Blackmon because of his affiliation with and activity in the Union.
There is no showing that his past record in any way, affected Black-
mon's efficiency or trustworthiness as an employee, and we are of
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the opinion that it will effectuate the policies of the Act to order his,
reinstatement.
We find that the respondent discriminated in regard to the hire
and tenure of employment of the charging employees listed in Ap-
pendix "A" and Appendix "B," thereby discouraging membership in
the Union and encouraging membership in the Independent, and that
the respondent thereby interfered with, restrained, and coerced its
employees in their exercise of the rights guaranteed in Section 7 of
the Act. We find that the record does not support the allegations of
the complaint that the respondent discriminated against the em=
ployees named in Appendix "C" and Appendix "D"- in regard to
their hire and tenure of employment, thereby discouraging or en-
couraging membership in a labor organization.
C..The' alleged refusal to bargain collectively
On November 4, 1937, the Union requested the respondent for ex-
clusive, recognition. The respondent denied knowledge that the Union
represented a majority and asserted its willingness to, abide by a
Board determination of the question concerning representation.
On November 8, 1937, the Union' filed with the Board its petition
for certification.
On November 11, 1937,,the Union and the respondent met with
Howard, an agent of the ,Board. The respondent requested that the
question of representation be resolved by an election. Howard 'stated
that since charges had been -filed they "would have to be cleared up
before an election - . . . or before any further informal hearing
could be held." The respondent agreed to a cross-check of union
membership application cards against the respondent's pay roll with
the understanding that such cross-check "would, have no effect" upon
the issue, of recognition and with the further understanding that
authority to recognize a collective bargaining representative would
have to come from the Cincinnati office of the respondent.
On November 12, 1937, Howard made the cross-check in Rothen-
berg's office in the presence of Rothenberg and Palmer and announced
that the Union represented 64 per cent of the employees involved in
the cross-check.
On or about November 15, 1937, Prior, acting for the Union, re-
quested Rothenberg for exclusive recognition. Rothenberg reminded
Prior of the understanding reached with Howard and stated that
he had forwarded the result of the cross-check to the respondent's
Cincinnati office.
Thereafter, neither the Union nor the respondent communicated
with the other with respect to the issue of recognition.
ANDREW JE'RGENiS "CO. OF CALIFORNIA 573
Under these circumstances, we do not conclude that the respondent
refused to bargain within the meaning of Section 8 (5) of the Act.
We -find that the record does not support the allegation of the
complaint that the respondent refused to bargain collectively with
the Union as the exclusive representative of its employees.
In view of the foregoing it is unnecessary to make any determina-
tion as to representation by the Union of a majority in the appro-
priate unit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
,States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act and to restore as nearly as possible the conditions, which existed
prior to the commission of the unfair labor practices.
We have found that the respondent dominated and interfered
with the formation and administration of and contributed support
to the Association. Our finding would ordinarily warrant the issu-
ance of an order directing the respondent to disestablish the organiza-
tion as a representative of its employees for the purposes of collective
bargaining, but we shall withhold such an order since it is apparent
from the record that this labor organization has been replaced by the
Independent. However, in order to bar a resumption or repetition
of the activities which constituted the unfair labor practices, we
shall order the respondent to cease and desist from dominating, in-
terfering with, or contributing support to, the Association.
We have found that the respondent has dominated and interfered
with the formation and administration of and contributed support to
the Independent. Its continued existence is a consequence of vio-
lation of the Act, thwarting the purposes of the Act and rendering
ineffective a mere order to cease the unfair labor practices.43 In order
to effectuate the policies of the Act and free the employees of the
respondent from such domination and interference and the effects
41 Consolidated Edison Company v. N. L. R. B , 305 P S. 197.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof, which constitute a continuing obstacle to the exercise by the
employees of the rights guaranteed them by the Act, we shall order
the respondent to refrain from recognizing the Independent, and
withdraw' all recognition, if ant, from the Independent, as repre-
sentative of the respondent's employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages, rates
of pay, hours' of employment and conditions of work, and to dis-
establish it as such representative.44
We have found that the respondent discriminated in regard to
the hire and tenure of employment of the charging employees named
in Appendix "A" and Appendix "B." Since the respondent has
Already reinstated the employees ' named in Appendix "B," we shall
not order the respondent to reinstate theni.45 The respondent, how-
ever, has not reinstated the employees named in 'Appendix "A.746
We shall. therefore order the respondent to offer to the employees
named in Appendix "A" reinstatement to their former or substan-
tially equivalent positions. The offer of reinstatement shall be with-
out prejudice to their seniority and other rights and privileges and
shall be effected in the following manner: All employees hired after
-the dates wheli the respondent discriminated against the employees
to-be offered reinstatement, shall, if necessary to provide employment
,for those to be offered reinstatement, be dismissed. If, thereupon,
.by reason of a reduction in force there is not sufficient employment
immediately available for the remaining employees, including those
to be offered reinstatement, all available positions shall be distributed
among such remaining employees in accordance with the respondent's
.usual method of reducing its force, without discrimriation against
any employee because of his union affiliation or activities, following
.a 'system of seniority to such extent as' has been applied prior-to
November 3, 1937; in the conduct of the respondent's business. Those
employees remaining after such distribution for whom no employ-
ment is immediately available, shall be placed upon a preferential
44 N. L. R B. v Pennsylvania Gi eyhound Lines, Inc, et al , 303 U. S. 261.
4GAppendix "B" includes the names- of Sue Fields, Mildred Gribble, Ilene Pillow,, Ruth
Rhoads, and'Eudalia Watkinson. We have found above that Fields, Pillow and Rhoads were
discriminatorily laid off on January 26, 1938. However, Fields and Rhoads were only laid
off for January 27 and January 28; Pillow, for January 27, January 28, and January 31.
Gribble on January 26 requested the day off on January 27, but was discriminatorily laid
off on January 26 for January 28 Watkinson was discriminatorily laid off for January 31
and received word to return to work the next day. Although the record does not show
whether or not each of the employees named, except Rhoads, in fact returned to work or
were reinstated, each of them was laid off only for a definite day or days, and presumably
returned to her employment at the expiration of her lay-off period. Rhoads testified on
January 31 that she had asked for that day off. Under these circumstances we have
Included the five employees among those already reinstated
48 We have included in Appendix "A" the name of Dolores Van Holm, since, as we have
found above , she was discriminatorily laid off on January 27 , 1938, and merely told that
the lay-off was temporary. In contrast to the cases of Fields, Gribble, Pillow; Rhoads, and
Watkinson, it does not appear that Van Holm's lay-off was confined to any definite period.
ANDREW J'ERGENSI CO. OF CALIFORNIA 575
list prepared in accordance with the principles set forth in the
previous sentence, and shall, thereafter, in accordance with such list,
be offered employment in their former or in substantially equivalent
positions , as such employment becomes available and before other
persons are hired for such work.
By laying off or by discharging or by delaying the reinstatement of,
or by refusing to reinstate the employees named in Appendix "A" and
Appendix -"B," the respondent has discriminated in regard to their
hire and tenure of employment. Accordingly, we shall order the
respondent 'to make payment °to each of the employees named in
Appendix "A" and Appendix "B" an amount equal to that which each
would normally have earned as wages during the period or periods
from the date or. dates of discrimination to the date or dates of the
.l:einstatement of, the offer of reinstatement to, or, placement upon
the preferential list of, each employee, less his or her net earnings,-,"
during that period or those periods, had the respondent not discrimin-
ated in regard to his or her hire or tenure of employment 4a
We have found that the respondent has not discriminated in regard-
to• the hire -and tenure of employment of the employees listed in
Appendix "C." These employees have not been reinstated 49 in view
of the -respondent 's unfair labor practices as set forth in Section III
above, there is grave danger that the respondent will not reinstate the
employees listed in Appendix "C," even if their former or substantially
equivalent positions are open. In order to effectuate the policies of
1 be Act, we will require the respondent to include the employees named
in Appendix "C" upon -the preferential list -referred to above, or if
•47 By "net earnings" is meant earnings less expenses, such as for transportation, room
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere • See Matter
of Crossett Lumber Company and Unst¢d Brotherhood of Carpenters and Joiners of Anaerica,
Lumber and'Sawmill Workers Union, Local 2590, 8 N. L R B: 440. Monies received for
work perfoimed upon Fedeial, state, county and municipal or other work-relief-projects
are not considered as earnings, but shall be deducted from the sum due the employee, and
the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments which supplied the funds for said
work-relief'piojeets. Matter of Republic Steel Corporation and Steel Workers Organizing
Committee, 9 N. L. R . B 219, enf'd N. L. R B. v. Republic Steel Corp, 107 F. (2d) 472
,(C. C A 3), cert granted May 20, 1940
48 During Blackmon's lay-off of January 7, 1938, he was recalled to work, as noted aliove,
on January 12, but failed to return until January 18 He is not entitled to back pay be-
tween January 12 and January 18, 1938. During their lay-offs during the last week in
January 1938, Fields testified at the hearing on January 28 ; Pillow, Van Holm, and
Watkinson on January 31 Since these employees presumably would not have worked on
the days they testified, they are not entitled to back pay for those days. Gribble requested
the day of January 27 off, and is not entitled to back pay for that day. She testified on
January 28, liov eNci, and, the record shows that she would have testified on January 27, if
she had not been laid off for January 28 Under these circumstances Gribble is entitled to
back pay,for January 28, 1938
40 Appendix "D" lists the employees who were not discriminated against, and who have
been reinstated. -
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no need for that preferential list arises, upon a similar preferential
list, to be'offered reinstatement in accordance with the principles set
forth above in connection with the reinstatement of employees.50
VI. THE PETITION
In view of the lapse of time since the filing of the petition for in-
vestigation and certification of representatives, we shall dismiss the
,petition without prejudice.
Upon the basis of,the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Andrew Jer•gens Employees' Association was a labor organiza-
tion, and Soap & Cosmetic Workers Union, No. 21361' and Independent
Soap & Cosmetic Workers Union, Inc. are labor organizations within
the meaning of Section 2 (5) of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of Andrew Jergens Employees' Association
and Independent Soap & Cosmetic Workers Union, Inc. and contribut-
ing support to them, has engaged and is engaging in 'unfair labor
practices within the meaning of Section 8 (2) of the Act.
3. The respondent, by discriminating in regard to the hire and
tenure of employment of the employees named in Appendix "A" and
Appendix "B," has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (3) of the Act.
4. The respondent, by interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the
Act, has engaged in and is engaging in. unfair labor practices within
'the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2" (6) an4 ;(7) of
the Act.
6. The respondent has not engaged in unfair labor practices within
,the meaning of Section 8 (5) of the Act. '
7. The respondent has not discriminated in regard to the hire and
tenure of employment of the employees named in Appendix "C" and
Appendix "D" within the meaning of Section 8 (3) of the Act.
50 Matter of Benjamin Levine, doing business under the name and style of Estellite
Fixtures Company and International Brotherhood of Electrical Workers, Local Union No.
438, 6 N L R B 400; Matter of American Manufacturing Concern and Local No. 6,
Organized Furniture Workers, 7 N. L R B. 753; Matter of American Numbering Machine
Company and International Association of Machinists, District #15, 10 N. L. R B. 536
ANDREW JERGE'N CO. OF CALIFORNIA 5'77
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the `National Labor Relations Board hereby orders that Andrew
Jergens Company of California, and its officers, agents, successors,
and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Soap & Cosmetic Workers Union,
No. 21361, or any other labor organization of its employees, by dis-
charging, laying off, delaying the reinstatement of, or refusing to re-
instate any of its employees or by discriminating in any other manner
in regard to hire or tenure of employment;
(b) In any manner dominating or interfering with the administra-
tion of Andrew Jergens Employees' Association or Independent Soap
& Cosmetic Workers Union, Inc., or with the formation or adminis-
tration of any other labor organization of its employees, or con
tributing support to Andrew Jergens Employees' Association or In-
dependent Soap & Cosmetic Workers Union, Inc. or to any other labor
organization of its employees;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities, for the purposes of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board-finds
will effectuate the policies of the Act :
(a) Refrain from recognizing, and withdraw all existing recog-
nition, if any, from Independent Soap & Cosmetic Workers Union,
Inc. as a representative of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of work,
and completely disestablish Independent Soap & Cosmetic Workers
Union, Inc., as such representative;
(b) Offer to the employees named in Appendix "A" immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights and
privileges, in the manner set forth in the section entitled "The
remedy" above, placing ' those employees for whom employment is
not immediately available upon a preferential list in the manner
set forth in said section;
3234 28-42-vo 1 27--38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Include the employees named in Appendix "C" upon the
preferential list referred to in paragraph 2 (b) above, or place them
upon a similar list, in the manner set forth in the section entitled
"The remedy" above, and refrain from -discriminating against them,
or any of the employees on said list, when employment becomes
available ;
(d) Make whole the employees named in Appendix "A" and
Appendix "B" for any loss of pay they' have suffered by reason of
the respondent's discrimination in regard to their hire and- tenure
of employment by payment to each employee of a sum of money
equal to. that which each normally would have earned as wages
during the period or periods from, the date or dates of the discrim-
ination to the, date or dates of, the reinstatement, offer of reinstate'-
ment, or placement on the preferential list, of or to each employee,
as the case may be, in the manner set forth, in 'the section entitled
"The remedy" above, less the net earnings 51 of-each employee dur-,
ing such period or periods, deducting, however, from the amount
otherwise due to each, monies earned by such employee during such
period or periods for work performed upon Federal, State, county,'
municipal or other work-relief projects and pay over the amount
so deducted to the appropriate fiscal agency of the Federal, State,
County, municipal, or other government or governments which sup-
plied the funds for said work-relief projects;
(e) Post immediately in conspicuous places at its plant, and
maintain for a period of at least sixty (60) consecutive days from. -
the date of posting, notices to its employees stating: (1) that the
respondent will not engage in the conduct from which it-is ordered
to cease and desist in paragraphs 1 (a), (b), and (c) of this Order;
(2) that the respondent, will take the affirmative action set forth
in paragraphs- 2 (a), (b), (c); and (d) of this Order; (3) that the
respondent's employees are free to become or remain members of
Soap' and Cosmetic 'Worker's Union, No. 21361, and the respondent
will 'not discriminate against any employee because of membership
or activity in that organization;
' (f) Notify the Regional Director, of the Twenty-first Region in
writing within ten (10) days from the date of this Order what
steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaintbe, and it hereby
is, dismissed in so far as it alleges that the respondent has engaged
in unfair labor practices within the meaning of Section 8 (5) of
the Act; and in so far as it alleges that the respondent discriminated
11 See supra, footnote 47.
ANDREW JE'RG'ENS CO. OF CALIFORNIA 579
in regard to the hire and tenure of employment of the employees
named in Appendix "C" and Appendix "D."
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives be, and it hereby is, dismissed, without
prejudice.
APPENDIX A
Suzanne Adams
William G. Blackmon
June Brown
Vera Campbell
Helen Dobbins
Lloyd H. Eddington
Mary Gracey
Melba Grafstrom
Florence Arnold
Clementine Bayless
Glen Campbell -
Lola Cox
Sue Fields
Mildred Gribble
Lena Holmes
Jean Mills
Leslie Chatfield
J. H. Craig
Grace Louise Bruce
Norman Heywood
Lula Johnson
Joseph Mulleda
APPENDIX B
Katherine Hayes
Dorothy Holmes
Jane Lansing
Ruth Newman
Ralph Palmer
Virginia Reid
Dolores Van Holm
Ed Young
C. F. Murphy
Shea Paysinger
Ilene Pillow
Ruth Rhoads
Betty Rowe
Arlene Stewart
Eudalia Watkinson
Marie Worcester
APPENDIX C
APPENDIX D
Harold Gratias
Velma Rainwater
' ' Helen Rogers
Ralph Smith
Nancy Williams